Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698928789791.pdf (New Zealand)
Reprint as at 1 April 2009 Commerce Act 1986 Public Act Date of assent 1986 No 5 28 April 1986 Contents Title Short Title and commencement Purpose Interpretation Certain terms deﬁned in relation to competition Commission to consider efﬁciency Application of Act to conduct outside New Zealand Application of Act to the Crown Application of Act to Crown corporations 1 1A 2 3 3A 4 5 6 Page 16 16 16 16 27 29 30 30 31 Note Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this eprint.
A general outline of these changes is set out in the notes at the end of this eprint, together with other explanatory material about this eprint.
This Act is administered in the Ministry of Commerce 1 Commerce Act 1986 Reprinted as at 1 April 2009 Special provisions relating to application of Act to the Crown in right of Australia and to Australian Crown corporations Crown and Crown corporations not immune from jurisdiction in relation to certain provisions of Trade Practices Act 1974 Application of Evidence Amendment Act 1980 Law relating to restraint of trade and breaches of conﬁdence not affected Part 1 The Commerce Commission Establishment of Commission Application of Crown Entities Act 2004 Membership of Commission Terms and conditions of appointment Associate members Chairperson and deputy chairperson Termination of appointment of members Disclosure of ﬁnancial interests [Repealed] Meetings of Commission chairperson may direct Commission to sit in Divisions Assent to determination Ofﬁcers and employees [Repealed] Personnel policy [Repealed] Equal employment opportunities [Repealed] Choice of procedure [Repealed] Superannuation and retiring allowances Money to be appropriated by Parliament for purposes of this Act [Repealed] Funds of Commission [Repealed] Bank accounts [Repealed] Crown entity [Repealed] Investment of money [Repealed] Exemption from income tax Functions of Commission in relation to dissemination of information Commission to have regard to economic policies of Government 31 32 32 32 33 33 33 34 35 36 37 38 38 39 40 40 40 41 41 41 42 42 42 42 42 43 43 43 6A 6B 6C 7 8 8A 18A 18B 18C 18D 26 2 Reprinted as at 1 April 2009 Commerce Act 1986 Part 2 Restrictive trade practices Practices substantially lessening competition Contracts, arrangements, or understandings substantially lessening competition prohibited Covenants substantially lessening competition prohibited Contracts, arrangements, or understandings containing exclusionary provisions prohibited Price ﬁxing Certain provisions of contracts, etc, with respect to prices deemed to substantially lessen competition Joint venture pricing
 exempt from application of section 30 Certain recommendations as to prices for goods and services exempt from application of section 30 Joint buying and promotion arrangements exempt from application of section 30 Certain provisions of covenants with respect to prices deemed to substantially lessen competition Practices substantially lessening competition conditional upon authorisation Contracts or covenants subject to authorisation not prohibited under certain conditions [Repealed] 27 28 29 30 31 32 33 34 35 Taking advantage of market power 36 36A 36B Taking advantage of market power Taking advantage of market power in trans­Tasman markets Purposes may be inferred Resale price maintenance Resale price maintenance by suppliers prohibited Resale price maintenance by others prohibited Recommended prices Withholding the supply of goods Preventing the supply of goods Special evidentiary provisions in respect of certain resale price maintenance practices Statutory exceptions Other exceptions Exceptions in relation to intellectual property rights Commerce Act 1986 Reprinted as at 1 April 2009 46 Saving in respect of business acquisitions Part 3 Business acquisitions 47 48 49 50 51 Certain acquisitions prohibited Bare transfer of market dominance excluded [Repealed] Application to building societies [Repealed] Certain merger or takeover proposals require clearance or authorisation [Repealed] Contracts subject to condition of clearance or authorisation [Repealed] Part 4 Regulated goods or services Subpart 1—Preliminary provisions Overview of Part Purpose of Part Outline of Part Interpretation 52 52A 52B 52C 52D Meaning and application of claw­back Subpart 2—Regulating particular goods or services 52E Overview of process if regulation imposed on goods or services Effect of goods or services being subject to regulation 52F 52G When goods or services may be regulated Commission inquiry 52H
 52I 52J 52K How inquiry triggered Commission inquiry into particular goods or services Process of inquiry Commission’s recommendation following inquiry Order in Council imposing regulation 52L Minister’s consideration 52M Minister’s decision and recommendation 52N 52O Order in Council imposing regulation Revocation or amendment of Order in Council Commission determination about how regulation applies 52P 52Q Determinations by Commission under this section Amendment of section 52P determination 4 62 63 64 64 64 64 65 65 65 66 68 68 69 69 70 70 72 72 73 74 74 75 76 77 Reprinted as at 1 April 2009 Commerce Act 1986 Subpart 3—Input methodologies Purpose of input methodologies How published input methodologies apply 52R 52S 52T Matters covered by input methodologies 52U When input methodologies must be determined 52V 52W Publication of input methodologies Amendment of input methodologies 52X Review and date of publication of input methodologies 52Y Commission process for determining input methodologies Appeals against input methodology determinations Appeals against input methodology determinations 52Z 52ZA Process for appeals 53 Input methodology applies pending outcome of appeal Subpart 4—Information disclosure regulation Purpose of information disclosure regulation Effect of being subject to information disclosure regulation Section 52P determination to set out information disclosure requirements Consolidated information may also be required Charge for providing copies to public Limited exception to obligation to apply input methodologies Subpart 5—Negotiate/arbitrate regulation Purpose of negotiate/arbitrate regulation Overview of negotiate/arbitrate regulation Section 52P determination to set out requirements for application of negotiate/arbitrate regulation Compulsory arbitration 53A 53B 53C 53D 53E 53F 53G 53H 53I 53J Subpart 6—Default/customised price­quality regulation Purpose of default/customised price­quality regulation Overview of default/customised
 price­quality regulation 53K 53L 53M Content and timing of price­quality paths 53N Monitoring compliance with price­quality paths Default price­quality path 53O Section 52P determination to set out requirements of default price­quality paths 78 78 78 80 80 81 81 81 82 83 83 84 84 85 86 87 87 88 88 89 90 91 91 91 93 93 5 Commerce Act 1986 Reprinted as at 1 April 2009 53P Resetting starting prices, rates of change, and quality standards Customised price­quality paths 53Q 53R Supplier may propose customised price­quality path Effect of making proposal for customised price­quality path Preliminary assessment of proposal Process and timing for assessing proposal Extension of time frames Determination setting customised price­quality path 53S 53T 53U 53V 53W Term of customised price­quality paths 53X What happens when customised price­quality path ends Commission’s costs in setting customised price­quality 53Y path Prioritisation by Commission 53Z 53ZA What happens if Commission does not make decision 94 96 96 96 97 97 98 98 98 99 99 100 within time frame What happens to price­quality paths if input methodologies change 53ZB What happens to price­quality paths if input methodologies 101 change Subpart 7—Individual price­quality regulation 53ZC Price­quality path for individual businesses Subpart 8—Miscellaneous provisions 53ZD Powers of Commission under this Part 53ZE Levies 53ZF Material may be incorporated by reference 53ZG Power to exempt disclosure of commercially sensitive information Subpart 9—Electricity lines services Overview of how subpart applies Overview of when subpart applies Interpretation for subpart 54 54A 54B 54C Meaning of electricity lines services Deﬁnition of consumer­owned 54D Imposition of regulation under this Part 54E Electricity lines services declared to be regulated 101 102 103 104 105 105 106 106 106 108 110 6 Reprinted as at 1 April 2009 Commerce Act 1986 54F 54G 54H 54I 54J 54K All electricity lines services are subject to information disclosure
 regulation Certain electricity lines services are also subject to default/customised price­quality regulation How exempt status can be lost and default/customised price­quality regulation can be applied to consumer­owned suppliers Commission must make section 52P determination specifying how subpart applies Section 52P determinations setting out default price­quality paths applying from 1 April 2009 Section 52P determinations setting out default price­quality paths applying from 1 April 2010 Transitional arrangements 54L Administrative settlements made before 1 April 2009 (other than with Transpower) 54M Administrative settlements with Transpower made before 1 April 2009 Breaches of thresholds and default price­quality paths before 1 April 2010 Breaches of control imposed, or administrative settlements entered into, after 1 April 2009 Proposals for customised price­quality paths 54N 54O 54P 54Q Energy efﬁciency Energy efﬁciency Jurisdiction issues and interface with Electricity Commission and Electricity Act 1992 54R 54S 54T 54U 54V Transfer of jurisdiction relating to electricity lines services supplied by Transpower Effect of transfer of jurisdiction Procedure before jurisdiction order can be made Levies during transition in jurisdiction Impact of certain decisions made under Electricity Act 1992 Savings provisions 54W Savings provision relating to existing information 54X disclosure requirements Savings provision for existing levy regulations for electricity lines businesses 110 110 111 112 112 113 114 114 115 116 116 117 117 117 118 119 119 120 120 7 Commerce Act 1986 Reprinted as at 1 April 2009 Subpart 10—Gas pipeline services Overview and interpretation Overview of subpart 55 55A Meaning of gas pipeline services 55B 55C 55D 55E 55F 55G 55H Imposition of regulation under this Part Gas pipeline services declared to be regulated All gas pipeline services are subject to information disclosure regulation All gas pipeline services are subject to price­quality
 regulation Commission must make section 52P determination specifying how subpart applies Section 52P determinations setting out ﬁrst default price­quality paths Services controlled by virtue of Commerce (Control of Natural Gas Services) Order 2005 Existing order, authorisations, and undertakings continue to apply until 1 July 2012 (or earlier expiry) How price­quality regulation under this Part applies after 1 July 2012 (or earlier expiry) Interface with Gas Act 1992 55I Impact of certain decisions made under Gas Act 1992 Savings provisions 55J 55K Savings provision until Commission publishes information disclosure requirements Savings provision for existing levy regulations for services controlled under Commerce (Control of Natural Gas Services) Order 2005 Subpart 11—Airport services Overview and interpretation Overview of subpart 56 56A Meaning of speciﬁed airport services Imposition of regulation under this Part Speciﬁed airport services declared to be regulated Speciﬁed airport services are subject to information disclosure regulation Duty to also disclose to Secretary of Transport 56B 56C 56D 8 121 121 123 123 123 124 124 125 126 126 127 128 128 129 130 130 130 Reprinted as at 1 April 2009 Commerce Act 1986 56E Commission must make determination specifying how subpart applies How information disclosure regulation applies 56F 56G 57 57A Transitional provision until Commission publishes information disclosure requirements Transitional provision requiring review after new prices set Commission process [Repealed] Technical provisions relating to declaration of control [Repealed] Records to be kept for control purposes [Repealed] Other Acts relating to price control not affected [Repealed] 57B 57C 57CA Impact of certain decisions made under Gas Act 1992 [Repealed] Part 4A Provisions applicable to electricity industry [Repealed] Interpretation [Repealed] 57D 57DAA Meaning of electricity lines business [Repealed] 57DAAB Meaning of electricity supply business
 [Repealed] 57DA Body that exercises jurisdiction under this Part [Repealed] 57DB Transfer of jurisdiction in respect of Transpower [Repealed] 57DC Transfer of jurisdiction relating to other large electricity lines businesses [Repealed] 57DD Procedure before jurisdiction order can be made [Repealed] 57DE Levies during transition in jurisdiction [Repealed] 57DF Ministerial powers [Repealed] Subpart 1—Controlled goods or services [Repealed] 57E 57F Purpose [Repealed] Commission, not Minister, may declare that goods or services supplied by large electricity lines businesses are controlled [Repealed] Thresholds for declaration of control [Repealed] 57G 57GA Incorporation by reference of material in thresholds [Repealed] 57GB Effect of amendments to, or replacement of, material incorporated by reference in thresholds [Repealed] 131 131 131 132 132 132 132 132 133 133 133 133 133 133 134 134 134 134 134 134 135 135 9 Commerce Act 1986 Reprinted as at 1 April 2009 57GC Amendments to, or replacement of, material incorporated 135 by reference to be of same general character as original material [Repealed] 57GD Proof of material incorporated by reference [Repealed] 57GE Effect of expiry of material incorporated by reference [Repealed] 57GF Requirement to consult [Repealed] 57GG Access to material incorporated by reference [Repealed] Process for making decisions on declaration of 57H control [Repealed] Process before declaration made [Repealed] Effect of declaration of control [Repealed] Priorities [Repealed] 57I 57J 57K 57L Maximum of 5 years for duration of declaration [Repealed] 57M Authorisations and undertakings [Repealed] 57MA Impact of certain decisions made under Electricity Act 1992 [Repealed] Commission may lift control [Repealed] 57N Subpart 2—Transpower’s pricing methodology [Repealed] Commission may be required to authorise Transpower’s pricing methodology [Repealed] Authorisations in respect of Transpower’s pricing methodology [Repealed] Authorisations and
 undertakings [Repealed] Enforcement of authorisations [Repealed] Revocation of authorisations [Repealed] 57O 57P 57Q 57R 57S 57T 57U Subpart 3—Information disclosure [Repealed] Information disclosure [Repealed] Information to be supplied to Commerce Commission [Repealed] 57V Commerce Commission to publish summaries [Repealed] 57W Reasonable charge may be imposed for providing copies of statements [Repealed] Subpart 4—Asset valuations [Repealed] 135 135 135 135 136 136 136 136 136 136 136 136 137 137 137 137 137 138 138 138 138 Recalibration of asset values of large electricity line owners [Repealed] 57X Purpose of recalibrations [Repealed] 139 10 Reprinted as at 1 April 2009 Commerce Act 1986 57Y 57Z Interpretation [Repealed] Large electricity line owners must supply valuation to Commerce Commission [Repealed] 57ZA Comprehensive audit of asset values of large electricity line owners [Repealed] 57ZB Procedure after audit of asset values carried out [Repealed] 57ZC Outcome of audit of asset values [Repealed] Review of valuation methodologies [Repealed] 57ZD Review of valuation methodologies [Repealed] 57ZE Process when carrying out review of valuation methodologies [Repealed] Subpart 5—General provisions [Repealed] 57ZF Powers of Commission [Repealed] 57ZG Powers of entry and inspection [Repealed] 57ZH Authorised persons to prove identity [Repealed] 57ZI Offence to obstruct authorised persons [Repealed] 57ZJ Other offences [Repealed] 57ZK Levy of electricity lines businesses [Repealed] Part 5 Authorisations and clearances Restrictive trade practices 58 58A 58B 59 Commission may grant authorisation for restrictive trade practices Effect of authorisation Additional provisions relating to authorisations Contracts or covenants subject to authorisation not prohibited under certain conditions 59A When Commission may grant authorisation 59B Contraventions not prevented by granting of authorisation under section 59 or section 59A Procedure for applications for
 authorisation of restrictive trade practices Determination of applications for authorisation of restrictive trade practices Commission to prepare draft determination in relation to restrictive trade practices Commission may grant provisional authorisation [Repealed] 60 61 62 63 139 139 139 139 139 140 140 140 140 140 141 141 141 141 142 144 145 145 147 147 148 150 152 11 Commerce Act 1986 Reprinted as at 1 April 2009 64 65 Procedure at conference Commission may vary or revoke authorisations Business acquisitions 68 66 67 Commission may give clearances for business acquisitions Commission may grant authorisations for business acquisitions Provisions applying to applications for clearances and authorisations for business acquisitions Effect of clearance or authorisation 69 69A Commission may accept undertakings 69AB Authorisation or clearance void if undertaking contravened 69AC Variation of undertaking 69B Conferences in relation to business acquisitions Authorisations in respect of controlled goods or services [Repealed] Authorisations in respect of prices, revenues, and quality standards [Repealed] Considerations to be observed by Commission [Repealed] Procedure for making authorisations [Repealed] Remedies and penalties if overcharging or quality standards breached [Repealed] Terms of authorisations [Repealed] Investigations and audits [Repealed] Revocation and amendment of authorisations [Repealed] Provisional authorisations [Repealed] Alternative undertakings [Repealed] Conferences in relation to authorisations about controlled goods or services [Repealed] Levies [Repealed] 70 70A 70B 70C 70D 70E 70F 71 72 73 74 Part 6 Enforcement, remedies, and appeals Cease and desist orders 74AA Cease and Desist Commissioners 74A 74B 74C 74D Commissioner may make cease and desist orders Investigation, notice, and opportunity to be heard Procedure at cease and desist hearing Pecuniary penalties for contravention of cease and desist order 12 152 153 154 155 156 157 157 158
 158 159 160 160 160 160 160 160 161 161 161 161 161 161 162 163 164 164 Reprinted as at 1 April 2009 Commerce Act 1986 75 76 77 78 79 79A 79B 80 80A 80B 80C 80D 80E 81 82 82A 83 84 84A 85 85A 85B Jurisdiction of courts Jurisdiction of High Court Jurisdiction of District Courts Additional lay members of High Court for purposes of appellate jurisdiction in respect of Commission determinations Lay members of High Court in certain cases Evidence not otherwise admissible Proceedings for pecuniary penalties Proceedings for pecuniary penalties Relationship between pecuniary penalties and criminal liability Restrictive trade practices Pecuniary penalties Body corporate not to indemnify certain persons in respect of pecuniary penalties Pecuniary penalties for contravention of section 80A Court may order certain persons to be excluded from management of body corporate Application for order under section 80C Offence to act in contravention of order made under section 80C Injunctions may be granted by Court for contravention of Part 2 Actions for damages for contravention of Part 2 Exemplary damages for contravention of Part 2 Business acquisitions Pecuniary penalties Injunctions may be granted by Court for contravention of Part 3 or undertaking Actions for damages for contravention of Part 3 Court may order divestiture of assets or shares in respect of contravention of Part 3 Pecuniary penalties for contravention of undertaking Court may order divestiture of assets or shares in respect of contravention of undertaking 85C Matters Court must not take into account under sections 85A and 85B 165 166 167 169 171 171 171 172 174 175 175 176 176 177 177 178 178 180 181 182 182 184 184 13 Commerce Act 1986 Reprinted as at 1 April 2009 86 86A 86B 86C 87 87A 87B 87C Regulated goods or services Pecuniary penalty for contravening information disclosure requirement Order requiring information disclosure requirement to be complied with Offences relating to information disclosure regulation
 Orders where negotiate/arbitrate regulation applies Pecuniary penalty for contravening price­quality requirements Compensation for contravention of price­quality requirement Offence relating to price­quality regulation Injunction and other orders relating to price­quality regulation Injunctions generally General provisions relating to granting of injunctions 88 88A When undertaking as to damages not required by Commission Other orders Conduct by servants or agents Appeals from determinations of commission Appeals in relation to determinations by Commission Persons entitled to appeal Determination of appeals Court may refer appeals back for reconsideration Provisions pending determination of appeal Court may order proceedings to be heard in private Appeal to Court of Appeal in certain cases Part 7 Miscellaneous provisions Commission may require person to supply information or documents or give evidence Power to search Powers conferred by warrant 98A 98B 98C Warrant to be produced 98D 98E 98F 98G Other duties of person who executes a warrant Duty to assist Power to inspect and take copies of documents, etc Commission may exercise powers notwithstanding other proceedings Reprinted as at 1 April 2009 Commerce Act 1986 98H 99 99A 100 Supply of information and documents in relation to section 36A Powers of Commission to take evidence Commission may receive information and documents on behalf of Australian Trade Practices Commission Powers of Commission to prohibit disclosure of information, documents, and evidence Notices Service of notices Offences Determinations of Commission Restriction on delegation Proceedings privileged 100A Commission may state case for opinion of High Court 101 102 103 104 105 106 106A Judicial notice 107 108 109 110 Annual report [Repealed] Regulations Commission may prescribe forms Repeals, revocations,
 savings, and consequential amendments Transitional provisions in respect of certain contracts, arrangements, or understandings Transitional provisions in respect of goods and services subject to price control under Commerce Act 1975 [Repealed] Transitional provisions in respect of goods and services subject to price restraint under regulations made under Commerce Act 1975 [Repealed] Transitional provisions in respect of milk pricing [Repealed] Savings in respect of certain provisions of Commerce Act 1975 [Repealed] 111 112 113 114 115 204 205 206 206 208 208 208 209 210 211 211 214 214 215 215 216 216 217 217 218 218 116 Winding up of Commerce Commission established under 218 117 118 Commerce Act 1975 [Repealed] Members of Commerce Commission established under Commerce Act 1975 deemed to be members of Commission [Repealed] Lay members of High Court appointed pursuant to Commerce Act 1975 deemed to be lay members of High Court appointed under this Act [Repealed] 218 218 15 Commerce Act 1986 Reprinted as at 1 April 2009 Schedule 1 Classes of merger or takeover proposals requiring prior clearance or authorisation by the Commission [Repealed] Schedule 2 Enactments amended Schedule 3 Enactments repealed Schedule 4 Orders and notices revoked Schedule 5 Material incorporated by reference Schedule 6 Exemptions from Part 4 in respect of speciﬁc pipelines 219 219 221 221 223 227 The long title was repealed, as from 26 May 2001, by section 3 Commerce Amendment Act 2001 (2001 No 32).
See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

1 (1) (2) Short Title and commencement This Act may be cited as the Commerce Act 1986.

This Act shall come into force on the 1st day of May 1986.

1A Purpose The purpose of this Act is to promote competition in markets for the long­term beneﬁt of consumers within New Zealand.

Section 1A was inserted, as from 26 May 2001, by section 4 Commerce Amendment Act 2001 (2001 No 32).
See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

2 (1) Interpretation In this Act, unless the context otherwise requires,— 16 Reprinted as at 1 April 2009 Commerce Act 1986 s 2 accounting period has the same meaning as in section 2(1) of the Financial Reporting Act 1993, except that every reference to an entity is a reference to a body corporate.

accounting period: this deﬁnition was inserted, as from 26 May 2001, by section 5 Commerce Amendment Act 2001 (2001 No 32).
See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

Acquire,— (a) In relation to goods, includes obtain by way of gift, purchase, or exchange; and also includes take on lease, hire, or hire purchase: In relation to services, includes accept: In relation to interests in land, includes obtain by way of gift, purchase, exchange, lease or licence.
(b) (c) this deﬁnition was inserted, as from 1 January 1991, by section Arrive at, in relation to an understanding, includes reach, and enter into Assets includes intangible assets Assets: 2(1) Commerce Amendment Act 1990 (1990 No 41).

associate member means a member appointed under section 11(1).

“associate member”: this deﬁnition was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Authorisation means an authorisation granted by the Commission under Part 5 of this Act, or by the Court on appeal under Part 6 of this Act against a determination of the Commission Business means any undertaking— (a) (b) That is carried on for gain or reward; or In the course of which— (i) (ii) Any interest in land is acquired or disposed of— otherwise than free of charge: Goods or services are acquired or supplied; or Chairman[Repealed] “Chairman”: this deﬁnition was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
[Repealed] chairperson means the chairperson of the Commission.

“chairperson”: this deﬁnition was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
17 s 2 Commerce Act 1986 Reprinted as at 1 April 2009 Clearance means a clearance given by the Commission under Part 5 of this Act, or by the Court on appeal under Part 6 of this Act against a determination of the Commission Commission— (a) means the Commerce Commission established under (b) Part 1; or for the purposes of determining any matter or class of matter speciﬁed in a direction under section 16(1), means the Division of the Commission speciﬁed in the direction in accordance with section 16(5).
“Commission”: this deﬁnition was substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

Commissioner means a Commissioner appointed under section 74AA(1).

Commissioner: this deﬁnition was inserted, as from 26 May 2001, by section 5 Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
“Commissioner”: this deﬁnition was substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Court means the High Court of New Zealand Covenant means a covenant (including a promise not under seal) annexed to or running with an estate or interest in land (whether at law or in equity and whether or not for the beneﬁt of other land); and proposed covenant has a corresponding meaning Credit instrument means any agreement (whether in writing or not) acknowledging an obligation to pay a sum or sums of money on demand or at any future time or times Deputy Chairman[Repealed] “Deputy Chairman”: this deﬁnition was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
[Repealed] deputy chairperson means the deputy chairperson of the Commission.

“deputy chairperson”: this deﬁnition was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Document means a document in any form whether signed or initialled or otherwise authenticated by its maker or not; and includes— (a) Any writing on any material: 18 Reprinted as at 1 April 2009 Commerce Act 1986 s 2 (b) Any information recorded or stored by means of any tape­recorder, computer, or other device; and any material subsequently derived from information so recorded or stored: Any label, marking, or other writing that identiﬁes or describes any thing of which it forms part, or to which it is attached by any means: (c) (d) Any book, map, plan, graph, or drawing: (e) Any photograph, ﬁlm, negative, tape, or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced: Electricity Commission means the Commission continued under section 172M of the Electricity Act 1992 Electricity Commission: this deﬁnition was inserted, as from 18 October 2004, by section 3 Commerce Amendment Act (No 2) 2004 (2004 No 82).
Give effect to, arrangement, or understanding, includes— (a) in relation to a provision of a contract, Do an act or thing in pursuance of or in accordance with that provision: Enforce or purport to enforce that provision: (b) goods (a) means personal property of every kind (whether (b) tangible or intangible); and includes— (i) (ii) (iii) minerals, trees, and crops, whether on, under, or ships, aircraft, and vehicles: animals, including ﬁsh: attached to land or not: gas and electricity: (iv) (v) to avoid doubt, water and computer software this deﬁnition was substituted, as from 8 July 2003, by section goods: 3(1) Commerce Amendment Act 2003 (2003 No 32).
Local authority includes every local authority and every public body or other authority created by or pursuant to any public Act or local Act member of the Commission— (a) means a member appointed under section 9(2); and 19 s 2 Commerce Act 1986 Reprinted as at 1 April 2009 (c) the includes an (b) means this deﬁnition was substituted, as from 25 Commissioner Telecommunications appointed under section 9 of the Telecommunications Act 2001; and in the circumstances in section 11(3), associate member.
“member of the Commission”: January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

Minister[Repealed] Minister: this deﬁnition was substituted, as from 1 December 1988, by section 4(1) Trade and Industry Repeal Act 1988 (1988 No 156).

“Minister”: this deﬁnition was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
[Repealed] Minister means the Minister of the Crown who, under the authority of any warrant or with the authority of the is for the time being responsible for the Prime Minister, administration of this Act.

Minister: a second deﬁnition of this term was inserted, as from 26 May 2001, by section 5 Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

The amending authority did not repeal the existing deﬁnition of Minister.
Ofﬁcer of the Commission[Repealed] “Ofﬁcer of the Commission”: this deﬁnition was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

[Repealed] Person, includes a local authority, and any association of persons whether incorporated or not Place includes any premises, building, aircraft, ship, carriage, vehicle, or receptacle Place: 2(2) Commerce Amendment Act 1990 (1990 No 41).
Prescribed means prescribed by regulations under this Act or by the Commission Price, includes valuable consideration in any form, whether direct or indirect; and includes any consideration that in effect relates to the acquisition or supply of goods or services or the acquisition or disposition of any interest in land, although ostensibly relating to any other matter or thing this deﬁnition was inserted, as from 1 July 1990, by section 20 Reprinted as at 1 April 2009 Commerce Act 1986 s 2 forming part of or Provision, in relation to an understanding or arrangement, means any matter relating to the understanding or arrangement Services includes any rights (including rights in relation to, and interests in, real or personal property), beneﬁts, privileges, or facilities that are or are to be provided, granted, or conferred in trade; and, without limiting the generality of the foregoing, also includes the rights, beneﬁts, privileges, or facilities that are or are to be provided, granted, or conferred under any of the following classes of contract (a) A contract for, or in relation to,— (i) (ii) The performance of work (including work of a professional nature), whether with or without the supply of goods; or The provision of, or the use or enjoyment of facilities for, accommodation, amusement, things, the care of persons or animals or entertainment, or recreation; or instruction, parking, (iii) The conferring of rights, beneﬁts, or privileges for which remuneration is payable in the form of a royalty, tribute, levy, or similar exaction: to avoid doubt, the supply of electricity, gas, telecommunications, or water, or the removal of waste water: (iv) (b) A contract of insurance, including life assurance, and life reassurance: (c) A contract between a bank and a customer of the bank: (d) Any contract for or in relation to the lending of money or granting of credit, or the making of arrangements for the lending of money or granting of credit, or the buying or discounting of a credit instrument, or the acceptance of deposits;— but does not include rights or beneﬁts in the form of the supply of goods or the performance of work under a contract of service services: paragraph (a)(iv) of this deﬁnition was inserted, as from 8 July 2003, by section 3(2) Commerce Amendment Act 2003 (2003 No 32).
21 s 2 Commerce Act 1986 Reprinted as at 1 April 2009 A beneﬁcial interest in any such share: Share means a share in the share capital of a company or other body corporate, whether or not it carries the right to vote at general meetings; and includes— (a) (b) A power to exercise, or control the exercise of, a right to vote attaching to any such share that carries the right to vote at meetings of the company: A power to acquire or dispose of, or control acquisition or disposition of, any such share: (d) A perpetual debenture and perpetual debenture stock: Share: 2(3) Commerce Amendment Act 1990 (1990 No 41).
this deﬁnition was inserted, as from 1 January 1991, by section the (c) Share: this deﬁnition was amended, as from 1 July 1994, by section 2 Company Law Reform (Transitional Provisions) 1994 (1994 No 16) by substituting the words “meetings of the company” for the words “general meetings”.

Substantial[Repealed] Substantial: this deﬁnition was repealed, as from 1 January 1991, by section 2(4) Commerce Amendment Act 1990 (1990 No 41).
[Repealed] Supply,— (a) In relation to goods, includes supply (or resupply) by way of gift, sale, exchange, lease, hire, or hire purchase; and In relation to services, confer;— includes provide, grant, or (b) supplied, and supplier have and supply as a noun, corresponding meanings Trade means any trade, business, industry, profession, occupation, activity of commerce, or undertaking relating to the supply or acquisition of goods or services or to the disposition or acquisition of any interest in land turnover means the total gross revenues (exclusive of any tax required to be collected) received or receivable by a body corporate in an accounting period as a result of trading by that body corporate within New Zealand.
turnover: this deﬁnition was inserted, as from 26 May 2001, by section 5 Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
22 Reprinted as at 1 April 2009 Commerce Act 1986 s 2 Working day means any day of the week other than— (a) Saturday, Sunday, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereign’s birthday, and Waitangi Day; and (b) A day in the period commencing with the 25th day of December in any year and ending with the 15th day of January in the following year.

(1A) (2) In this Act (except sections 36, 36A, and 47(3) and (4)) substantial means real or of substance.
In this Act,— (a) A reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including— The entering into, or the giving effect to a provi­ (i) sion of, a contract or arrangement; or The arriving at, or the giving effect to a provision of, an understanding; or (ii) (iii) The requiring of the giving of, or the giving of, a covenant: (b) A reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a) of this subsection, shall be read as a reference to the doing of, or the refusing to do, any act, including— (i) The entering into, or the giving effect to a provi­ sion of, a contract or arrangement; or The arriving at, or the giving effect to a provision of, an understanding; or (ii) (iii) The requiring of the giving of, or the giving of, a covenant: (c) A reference to refusing to do an act includes a reference to— (i) Refraining (otherwise than inadvertently) from doing that act; or (ii) Making it known that that act will not be done: (d) A reference to a person offering to do an act, or to do an act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers, or proposals for the person to do that act or to do that act on that condition, as the case may be.
23 s 2 Commerce Act 1986 Reprinted as at 1 April 2009 (3) Where any provision of this Act is expressed to render a provision of a contract or a covenant unenforceable if the provision of the contract or the covenant has or is likely to have a particular effect, that provision of this Act applies in relation to the provision of the contract or the covenant at any time when the provision of the contract or the covenant has or is likely to have that effect, notwithstanding that— (a) At an earlier time the provision of the contract or the covenant did not have that effect or was not regarded as likely to have that effect; or The provision of the contract or the covenant will not or may not have that effect at a later time.
(b) In this Act— (a) A reference to the acquisition of goods includes a refer­ ence to the acquisition of property in, or rights in rela­ tion to, goods in pursuance of a supply of the goods: (c) (b) A reference to the supply or acquisition of goods or services includes a reference to agreeing to supply or acquire goods or services: A reference to the supply or acquisition of goods in­ cludes a reference to the supply or acquisition of goods together with other property or services or both: (d) A reference to the supply or acquisition of services in­ cludes a reference to the supply or acquisition of ser­ vices together with property or other services or both: A reference to the resupply of goods acquired from a person includes a reference to— (i) A supply of the goods to another person in an altered form or condition; and (e) (ii) A supply to another person of other goods in which the goods have been incorporated.
For the purposes of this Act— (a) A provision of a contract, arrangement or understand­ ing, or a covenant shall be deemed to have had, or to have, a particular purpose if— (i) The provision was or is included in the contract, arrangement or understanding, or the covenant was or is required to be given, for that purpose (4) (5) 24 Reprinted as at 1 April 2009 Commerce Act 1986 s 2 or purposes that included or include that purpose; and That purpose was or is a substantial purpose: (ii) (b) A person shall be deemed to have engaged, or to engage, in conduct for a particular purpose or a particular reason if— (i) That person engaged or engages in that conduct for that purpose or reason or for purposes or rea­ sons that included or include that purpose or rea­ son; and That purpose or reason was or is a substantial purpose or reason.
(ii) (6) (7) In this Act— (a) A reference to a contract shall be construed as including a reference to a lease of, or a licence in respect of, any land or a building or part of a building, and shall be so construed notwithstanding any express reference in this Act to any such lease or licence: (c) (b) A reference to making or entering into a contract, in relation to such a lease or licence, shall be read as a reference to granting or taking the lease or licence: A reference to a party to a contract, in relation to such a lease or licence, shall be read as including a reference to any person bound by, or entitled to the beneﬁt of, any provision contained in the lease or licence.
For the purposes of this Act, any 2 bodies corporate are to be treated as interconnected if— (a) One of them is a body corporate of which the other is a subsidiary (within the meaning of sections 158 and 158A of the Companies Act 1955 or sections 5 and 6 of the Companies Act 1993, as the case may be); or Both of them are subsidiaries (within the meaning of those sections) of the same body corporate; or (ba) both of them are entities referred to by any of the paragraphs (other than paragraph (e)) of the deﬁnition of transferor in section 2(1) of the Health Sector (Transfers) Act 1993; or.
(b) 25 s 2 Commerce Act 1986 Reprinted as at 1 April 2009 (c) Both of them are interconnected with bodies corpo­ rate that, in accordance with paragraph (a) or paragraph (b) of this subsection, are interconnected— and interconnected bodies corporate has a corresponding meaning.
(7A) For the purposes of subsection (7)(a) and (b) of this section, no body corporate shall be regarded as a subsidiary (within the meaning of sections 158 and 158A of the Companies Act 1955 or sections 5 and 6 of the Companies Act 1993, as the case may be) of the Crown.
For the purposes of this Act— (a) (8) Any contract or arrangement entered into, or under­ standing arrived at by an association or body of persons, shall be deemed to have been entered into or arrived at by all the persons who are members of the association or body: (b) Any recommendation made by an association or body of persons to its members or to any class of its mem­ bers shall, notwithstanding anything to the contrary in the constitution or rules of the association or body of persons, be deemed to be an arrangement made be­ tween those members or the members of that class and between the association or body of persons and those members or the members of that class.
(9) Nothing in subsection (8) of this section applies to— (a) Any member of an association or body of persons who expressly notiﬁes the association or body in writing that he disassociates himself from the contract, arrange­ ment, or understanding or any provision thereof and who does so disassociate himself: To any member of an association or body of persons who establishes that he had no knowledge and could not reasonably have been expected to have had knowledge of the contract, arrangement, or understanding.
Compare: 1975 No 113 ss 2(1), 67A(3); 1976 No 67 ss 22, 23(3); 1979 No 140 s 2; 1983 No 144 s 26; Trade Practices Act 1974 (Aust), ss 4, 4C, 4F, 4H (b) Subsection (1A) was inserted, as from 1 January 1991, by section 2(5) Commerce Amendment Act 1990 (1990 No 41).

Subsection (1A) was amended, from 26 May 2001, by section as 9(2) Commerce Amendment Act 2001 (2001 No 32) by substituting the 26 Reprinted as at 1 April 2009 Commerce Act 1986 s 3 words “sections 36, 36A, and” for the word “section”.
See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

Subsection (7) was substituted, as from 1 January 1991, by section 2(6) Commerce Amendment Act 1990 (1990 No 41).

Subsection (7)(a) was substituted, as from 1 July 1994, by section 2 Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16).
Subsection (7)(b) was amended, as from 1 July 1994, by section 2 Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16) by substituting the words “those sections” for the words “that section”.

Subsection (7)(ba) was inserted, as from 1 January 2001, by section 107(1) New Zealand Public Health and Disability Act 2000 (2000 No 91).

Subsection (7A) was inserted, as from 9 December 1994, by section 2(1) Commerce Amendment Act 1994 (1994 No 135).
Subsection (7A) was amended, as from 1 January 2001, by section 107(2) New Zealand Public Health and Disability Act 2000 (2000 No 91) by substituting the expression “subsection (7)(a) and (b)” for the expression “subsection (7)”.

3 (1) Certain terms deﬁned in relation to competition In this Act competition means workable or effective competition.
(1A) Every reference in this Act, except the reference in section 36A2(b) and (c) of this Act, to the term market is a reference to a market in New Zealand for goods or services as well as other goods or services that, as a matter of fact and commercial common sense, are substitutable for them.
(1B) The reference in section 36A2(b) of this Act to the term market, in relation to a market in Australia, is a reference to a market in Australia for goods or services as well as other goods or services that, as a matter of fact and commercial common sense, are substitutable for them.
(1C) The reference in section 36A2(c) of this Act to the term market in relation to a market in New Zealand and Australia, is a reference to a market in New Zealand and Australia for goods or services as well as other goods or services that, as a matter of fact and commercial common sense, are substitutable for them.

In this Act, unless the context otherwise requires, references to the lessening of competition include references to the hindering or preventing of competition.
For the purposes of this Act, the effect on competition in a market shall be determined by reference to all factors that (3) (2) 27 Commerce Act 1986 Reprinted as at 1 April 2009 affect competition in that market including competition from goods or services supplied or likely to be supplied by persons not resident or not carrying on business in New Zealand.
In sections 27 and 28 of this Act, a reference to a market in relation to the purpose or effect in respect of competition of a provision of a contract, arrangement, or understanding, or of a covenant, or of conduct, shall be read as including a reference to— (a) A market in which a person who is a party to the con­ tract, arrangement, or understanding, or any intercon­ nected body corporate, or, as the case may be, the person or any associated person (within the meaning of section 28(7) of this Act) who requires the giving of, or gives the covenant, supplies or acquires or is likely to supply or acquire, or would, but for that provision, covenant, or conduct, supply or acquire or be likely to supply or acquire goods or services; and (b) Any other market in which those goods or services may be supplied or acquired.
For the purposes of section 27 of this Act, a provision of a contract, arrangement, or understanding shall be deemed to have or to be likely to have the effect of substantially lessening competition in a market if that provision and— (a) The other provisions of that contract, arrangement, or understanding; or The provisions of any other contract, arrangement, or understanding to which that person or any intercon­ nected body corporate is a party— (b) taken together, have or are likely to have the effect of substantially lessening competition in that market.
For the purposes of section 28 of this Act, a covenant shall be deemed to have or to be likely to have the effect of substantially lessening competition in a market if— (a) (b) Any other covenant to the beneﬁt of which that person or an associated person (within the meaning of section 28(7) of this Act) is entitled or would be entitled if the covenant were enforceable— That covenant; and s 3 (4) (5) (6) 28 Reprinted as at 1 April 2009 Commerce Act 1986 s 3A (7) (8) (9) taken together, have or are likely to have the effect of substantially lessening competition in that market.
For the purposes of sections 27 and 28 of this Act, the engaging in conduct shall be deemed to have or to be likely to have the effect of substantially lessening competition in a market if— (a) (b) The engaging in that conduct; and The engaging by that person in conduct of the same or a similar kind— taken together, have or are likely to have the effect of substantially lessening competition in that market.
Compare: Trade Practices Act 1974 (Aust) ss 4, 4E, 4G, 45(3), (4), 45B(4), 46 Subsection (1) was substituted, and subsections (1A) to (1C) were inserted, as from 1 July 1990, by section 3(1) Commerce Amendment Act 1990 (1990 No 41).

Subsections (1A) to (1C) were amended, as from 26 May 2001, by section 9(2) Commerce Amendment Act 2001 (2001 No 32) by substituting the expression “(2)” for the expression “(1)”.

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
Subsection (8) was amended, as from 1 July 1990, by section 3(2) Commerce Amendment Act 1990 (1990 No 41) by substituting the expression “sections 36 and 36A” for the expression “sections 36, 66, and 67”.

Subsection (8) was repealed, as from 26 May 2001, by section 9(3) Commerce See section 26 of that Act as to Amendment Act 2001 (2001 No 32).

proceedings barred or commenced before 26 May 2001.

Subsection (9) was inserted, as from 1 July 1990, by section 3(3) Commerce Amendment Act 1990 (1990 No 41).
Subsection (9) was amended, as from 2 September 1996, by section 13(1) Commerce Amendment Act 1996 (1996 No 113) by inserting, after the number “2” where it ﬁrst appears, the word “or” Subsection (9) was repealed, as from 26 May 2001, by section 11(3) Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
3A Commission to consider efﬁciency Where the Commission is required under this Act to determine whether or not, or the extent to which, conduct will result, or will be likely to result, in a beneﬁt to the public, the Commission shall have regard to any efﬁciencies that the Commission considers will result, or will be likely to result, from that conduct.
29 s 4 4 (1) Commerce Act 1986 Reprinted as at 1 April 2009 Section 3A was inserted, as from 1 July 1990, by section 4 Commerce Amendment Act 1990 (1990 No 41).

Application of Act to conduct outside New Zealand This Act extends to the engaging in conduct outside New Zealand by any person resident or carrying on business in New Zealand to the extent that such conduct affects a market in New Zealand.
(2) Without limiting subsection (1) of this section, section 36A of this Act extends to the engaging in conduct outside New Zealand by any person resident or carrying on business in Australia to the extent that such conduct affects a market, not being a market exclusively for services, in New Zealand.
(3) Without limiting subsection (1) of this section, section 47 of this Act extends to the acquisition outside New Zealand by a person (whether or not the person is resident or carries on business in New Zealand) of the assets of a business or shares to the extent that the acquisition affects a market in New Zealand.

Section 4 was substituted, as from 1 July 1990, by section 5 Commerce Amendment Act 1990 (1990 No 41).
Subsection (3) was inserted, as from 2 September 1996, by section 2 Commerce Amendment Act 1996 (1996 No 113).

5 (1) (2) (3) Application of Act to the Crown Subject to this section, this Act shall bind the Crown in so far as the Crown engages in trade.

The Crown shall not be liable to pay a pecuniary penalty under section 80 of this Act.

The Crown shall not be liable to be prosecuted for an offence against this Act.
(4) Where it is alleged that the Crown has contravened any provision of this Act and that contravention constitutes an offence, the Commission or the person directly affected by the contravention may apply to the Court for a declaration that the Crown has contravened that provision; and, if the Court is satisﬁed beyond a reasonable doubt that the Crown 30 Reprinted as at 1 April 2009 Commerce Act 1986 s 6A has contravened that provision, it may make a declaration accordingly.
Compare: 1975 No 113 s 20B; 1979 No 140 s 12; Trade Practices Act 1974 (Aust), s 2A 6 (1) Application of Act to Crown corporations This Act applies to every body corporate that is an instrument of the Crown in respect of the Government of New Zealand engaged in trade.

(2) Notwithstanding any enactment or rule of law, proceedings under Part 6 of this Act may be brought against a body corporate referred to in subsection (1) of this section.
Compare: 1975 No 113 s 20A; 1979 No 140 s 11 6A Special provisions relating to application of Act to the Crown in right of Australia and to Australian Crown corporations Section 36A of this Act, and Parts 6 and 7 of this Act, in so far as they relate to a contravention of, or confer powers that may be exercised in relation to, that section, apply to— (a) The Crown in right of the Commonwealth of Australia, each of the States of the Commonwealth of Australia, and the Northern Territory and the Australian Capital Territory, in so far as the Crown engages in trade; and Every body corporate that is an authority of the Com­ monwealth of Australia within the meaning of section 4 of the Trade Practices Act 1974 of the Parliament of the Commonwealth of Australia in so far as it engages in trade; and Every body corporate established for a purpose of a State of the Commonwealth of Australia by or under a law of that State in so far as it engages in trade; and Every body corporate in which a State of the Common­ wealth of Australia or in which a body corporate re­ ferred to in paragraph (c) of this section has a control­ ling interest in so far as it engages in trade.
(b) (c) (d) Sections 6A to 6C were inserted, as from 1 July 1990, by section 6 Commerce Amendment Act 1990 (1990 No 41).

31 s 6B Commerce Act 1986 Reprinted as at 1 April 2009 Paragraph (b) was amended, as from 2 September 1996, by section 13(2) Commerce Amendment Act 1996 (1996 No 113) by substituting the expression “1974” for the expression “1984”.
6B Crown and Crown corporations not immune from jurisdiction in relation to certain provisions of Trade Practices Act 1974 Neither the Crown nor a body corporate that is an instrument of the Crown in respect of the Government of New Zealand is immune, and neither the Crown nor such a body corporate may claim immunity, from the jurisdiction of the courts of New Zealand and Australia in relation to a contravention of section 46A of the Trade Practices Act 1974 of the Parliament of the Commonwealth of Australia and in relation to Parts VI and XII of that Act in so far as they relate to a contravention of that section.
Sections 6A to 6C were inserted, as from 1 July 1990, by section 6 Commerce Amendment Act 1990 (1990 No 41).

6C Application of Evidence Amendment Act 1980 Nothing in the Evidence Amendment Act 1980 applies in relation to the application of section 46A of the Trade Practices Act 1974 of the Parliament of the Commonwealth of Australia or Parts VI and XII of that Act in so far as they relate to a contravention of that section.
Sections 6A to 6C were inserted, as from 1 July 1990, by section 6 Commerce Amendment Act 1990 (1990 No 41).

7 Law relating to restraint of trade and breaches of conﬁdence not affected (1) Nothing in this Act limits or affects any rule of law relating to restraint of trade not inconsistent with any of the provisions of this Act.

(2) Nothing in this Act limits or affects any rule of law relating to breaches of conﬁdence.
(3) No rule of law referred to in subsection (1) or subsection (2) of this section affects the interpretation of any of the provisions of this Act.

Compare: Trade Practices Act 1974 (Aust), s 4M 32 Reprinted as at 1 April 2009 Commerce Act 1986 Part 1 s 9 8 (1) (2) (3) (4) Part 1 The Commerce Commission Establishment of Commission There is hereby established a Commission to be called the Commerce Commission.
Except as expressly provided otherwise in this or any other Act, the Commission must act independently in performing its statutory functions and duties, and exercising its statutory powers, under— (a) (b) this Act; and any other Act that expressly provides for the functions, powers, or duties of the Commission (other than the Crown Entities Act 2004).

Subsection (2) was substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Subsection (3) was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

Subsection (4) was repealed, as from 1 July 1990, by section 7 Commerce Amendment Act 1990 (1990 No 41).

8A Application of Crown Entities Act 2004 (1) The Commission is a Crown entity for the purposes of section 7 of the Crown Entities Act 2004.

The Crown Entities Act 2004 applies to the Commission ex­ cept to the extent that this Act expressly provides otherwise.
(3) Members of the Commission are the board for the purposes of (2) the Crown Entities Act 2004.

Section 8A was inserted, as from 25 January 2005, by section 200 Crown En­ tities Act 2004 (2004 No 115).

9 (1) Membership of Commission The Commission must have no less than 4, and no more than 6, members appointed in accordance with this section, and may also have associate members appointed under section 11(1).
(2) No less than 3, and no more than 5, of the members, of whom at least 1 must be a barrister and solicitor of at least 5 years’ 33 Part 1 s 10 Commerce Act 1986 Reprinted as at 1 April 2009 standing, must be appointed by the Governor­General in ac­ cordance with section 28(1)(b) of the Crown Entities Act 2004.

(3) One of the members must be appointed by the Governor­Gen­ eral as Telecommunications Commissioner under section 9 of the Telecommunications Act 2001.
The Minister must not recommend a person for appointment as a member under subsection (2) unless,— (a) (4) in the opinion of the Minister, that person is qualiﬁed for appointment, having regard to the functions of the Commission, by virtue of that person’s knowledge of or experience in industry, commerce, economics, law, ac­ countancy, public administration, or consumer affairs; and in the case of a member who is a barrister or solicitor, the Minister has ﬁrst consulted with the Attorney­Gen­ eral.
(b) Subsections (2) and (4) do not limit section 29 of the Crown Entities Act 2004.

Subsection (1) was amended, as from 20 December 2001, by section 158 Telecommunications Act 2001 (2001 No 103) by substituting the expres­ sion “4” for the expression “3”.

It was further amended by substituting the expression “6” for the expression “5” in the ﬁrst place that it occurs.

Subsection (1) was substituted, as from 1 April 2002, by section 6(1) Com­ merce Amendment Act 2001 (2001 No 32).
See section 26 of that Act as to pro­ ceedings barred or commenced before 26 May 2001.

See clause 2 Commerce Amendment Act 2001 Commencement Order 2002 (SR 2002/64).

Subsections (3A) and (3B) were inserted, as from 1 April 2002, by section 6(2) Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

See clause 2 Commerce Amendment Act 2001 Commencement Order 2002 (SR 2002/64).
Section 9 was substituted, as from 25 January 2005, by section 200 Crown En­ tities Act 2004 (2004 No 115).

Terms and conditions of appointment For the purpose of providing a superannuation fund or re­ tiring allowance for members of the Commission, sums by way of subsidy or contribution may from time to time be paid (5) 10 (1) (2) (3) (4) (5) 34 Reprinted as at 1 April 2009 Commerce Act 1986 Part 1 s 11 (6) into any superannuation scheme which is registered under the Superannuation Schemes Act 1989.
Compare: 1975 No 113 ss 4(1), 10, 17B; 1979 No 140 s 9(1) Subsection (1) was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

Subsection (2) was amended, as from 1 April 2003, by section 4(1) Remuner­ ation Authority (Members of Parliament) Amendment Act 2002 (2002 No 54) by substituting the words “Remuneration Authority” for the words “Higher Salaries Commission”.
Subsections (2) to (4) were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

Subsection (5) was substituted, as from 1 April 1991, by section 80 National Provident Fund Restructuring Act 1990 (1990 No 126).

Subsection (6) was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

11 (1) Associate members The Minister may from time to time appoint any person to be an associate member of the Commission.
(1A) Subsection (1) applies despite section 28(1)(b) of the Crown Entities Act 2004.

(3) (2) An associate member shall be appointed only in relation to a matter or a class of matters to be speciﬁed in that member’s notice of appointment, and for such period, not exceeding 5 years, as is speciﬁed in that instrument.
Subject to subsection (4) of this section, an associate member shall be deemed to be a member of the Commission for the purposes of the performance or exercise of any function, duty, or power of a member of the Commission under this Act or any other Act, except where this section or the context otherwise requires, a reference in this Act or in any other Act to a member of the Commission must be construed as including a reference to an associate member.
(4) An associate member may attend and vote only at a meeting of the Commission relating to the matter or class of matters speciﬁed in that member’s notice of appointment (including a meeting relating to matters incidental to the matter or class of matters so speciﬁed).
35 Part 1 s 12 Commerce Act 1986 Reprinted as at 1 April 2009 (5) An associate member may only be appointed in relation to a matter or class of matters arising under an Act under which the Commission is required to act independently under section 8(2).

(6) An associate member may not be appointed as chairperson, deputy chairperson, or a temporary deputy chairperson under clause 5 of Schedule 5 of the Crown Entities Act 2004.
Compare: 1975 No 113 s 3B; 1979 No 140 s 5; 1983 No 144 s 3 Subsection (1A) was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

Subsection (2) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the words “notice of appoint­ ment” for the words “instrument of appointment”.
Subsection (2) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the expression “5 years” for the expression “3 years”.

Subsection (3) was amended, as from 15 April 2004, by section 3(1)(a) Com­ merce Amendment Act 2004 (2004 No 23) by inserting the words “or any other Act” after the words “under this Act”.

See section 3(2) of that Act as to ap­ pointments made before 15 April 2004.
Subsection (3) was amended, as from 15 April 2004, by section 3(1)(b) Com­ merce Amendment Act 2004 (2004 No 23) by substituting the words “or in any other Act to a member of the Commission must” for the words “to a member shall”.

See section 3(2) of that Act as to appointments made before 15 April 2004.

Subsection (4) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the words “notice of appoint­ ment” for the words “instrument of appointment”.
Subsections (5) and (6) were inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

(2) Chairperson and deputy chairperson 12 (1) One member appointed under section 9(2) must be appointed by the Governor­General, on the recommendation of the re­ sponsible Minister, as chairperson and another must be ap­ pointed as deputy chairperson.

The chairperson and deputy chairperson may only be removed from ofﬁce as chairperson or deputy chairperson for just cause.
In other respects, clauses 1(2) and (3) and 4(2) and (3) of Schedule 5 of the Crown Entities Act 2004 apply to the ap­ pointment and removal of the chairperson and deputy chair­ person of the Commission.

(3) 36 Reprinted as at 1 April 2009 Commerce Act 1986 Part 1 s 13 Section 12 was substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
13 (1) (2) (3) Termination of appointment of members The Governor­General may remove any member of the Com­ mission appointed by the Governor­General from ofﬁce under section 39 of the Crown Entities Act 2004.

The Minister may remove any associate member from ofﬁce on the same grounds and in the same manner as the Governor­ General may remove a member under section 39 of the Crown Entities Act 2004.

Subsection (2) applies despite section 39(1) of the Crown Entities Act 2004.
(4) Notwithstanding that the term of ofﬁce of a member has ex­ pired or that a member has resigned that ofﬁce, that person shall be deemed to continue as a member for the purpose of— Completing the determination of any matter before that (a) person, as a member, which was commenced before the expiration of the term of ofﬁce or before the resignation took effect, as the case may be: (b) Giving reconsideration to any matter following a direc­ tion of the Court under Part 6 of this Act.
(5) Subsection (4) applies despite sections 32(3) and 45 of the Crown Entities Act 2004.

Compare: 1975 No 113 s 4(2), (3); 1976 No 67 s 23(3); 1979 No 140 s 6 Subsection (1) was amended, as from 1 January 2002, by section 70(1) Human Rights Amendment Act 2001 (2001 No 96), by substituting the words “inability to perform the functions of the ofﬁce” for the word “disability”.

Subsection (1) was substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Subsection (2) was amended, as from 1 January 2002, by section 70(1) Human Rights Amendment Act 2001 (2001 No 96), by substituting the words “inability to perform the functions of the ofﬁce” for the word “disability”.

Subsections (2) and (3) were substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

Subsection (5) was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
37 Part 1 s 14 Commerce Act 1986 Reprinted as at 1 April 2009 14 Disclosure of ﬁnancial interests [Repealed] Section 14 was substituted, as from 1 July 1990, by section 8 Commerce Amendment Act 1990 (1990 No 41).

Section 14 was repealed, as from 25 January 2005, by section 200 Crown En­ tities Act 2004 (2004 No 115).

15 Meetings of Commission (1) (2) (2A) (3) (4) At any meeting of the Commission the quorum shall be 3 members.
Subsection (4) applies despite clause 9(1) and (2) of Schedule 5 of the Crown Entities Act 2004.

Subject to the provisions of this Act, the chairperson may give directions regarding the procedure to be followed at or in con­ nection with any meeting of the Commission.

Compare: 1975 No 113 s 6; 1983 No 144 s 5(1), (2) Subsection (1) was amended, as from 15 April 2004, by section 4(1) Commerce Amendment Act 2004 (2004 No 23) by inserting the words “or any other Act”.
Subsection (1) was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

Subsection (2) was substituted, as from 15 April 2004, by section 4(2) Com­ merce Amendment Act 2004 (2004 No 23).

Subsections (2) to (3) were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Subsection (4) was amended, as from 15 April 2004, by section 4(3) Commerce Amendment Act 2004 (2004 No 23) by omitting the words “, or of any separate Division of the Commission acting under section 16(1) of this Act,”.

Subsection (5) was substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

Subsection (6) was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Subsection (7) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the word “chairperson” for the word “Chairman”.
(5) (6) (7) 38 Reprinted as at 1 April 2009 Commerce Act 1986 Part 1 s 16 16 (1) chairperson may direct Commission to sit in Divisions The chairperson may, by writing signed by him, direct that the powers of the Commission under this Act or any other Act in relation to any matter or class of matter, shall be exercised by separate Divisions of the Commission.

(1A) The powers in subsection (1) are an exception to clause 14 of (2) (3) (4) (5) Schedule 5 of the Crown Entities Act 2004.
Each Division shall consist of such members as are for the time being assigned to that Division by the chairperson.

If the members appointed to any Division do not include ei­ ther the chairperson or the deputy chairperson, the chairper­ son shall from time to time nominate the member who is to be chairperson of that Division.
In the absence of the member so nominated from any meeting of the Division, the members present shall appoint 1 of their number to be the chairperson of the Division for the purposes of that meeting.
For the purpose of the determination of a matter or class of matters speciﬁed in a direction given under subsection (1) of this section, the Commission shall be deemed to consist of the Division of the Commission speciﬁed in the direction; and the powers of any such Division shall not be affected by any changes or vacancies in its membership.
(6) A Division of the Commission may exercise powers of the Commission under this Act or any other Act notwithstanding that another Division of the Commission is exercising powers of the Commission at the same time.

(7) Any direction given under subsection (1) of this section may be revoked or amended by the chairperson by writing signed by him.
Compare: 1975 No 113 s 7; 1976 No 67 s 7 Section 16 was amended, as from 25 January 2005, by section 200 Crown En­ tities Act 2004 (2004 No 115) by substituting the word “chairperson” for the word “Chairman” wherever it appears.

Subsection (1) was amended, as from 15 April 2004, by section 5(1) Commerce Amendment Act 2004 (2004 No 23) by inserting the words “or any other Act” after the words “under this Act”.
Subsection (1A) was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

39 Part 1 s 17 Commerce Act 1986 Reprinted as at 1 April 2009 Subsection (3) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the words “deputy chairper­ son” for the words “Deputy Chairman”.
Subsection (6) was amended, as from 15 April 2004, by section 5(2) Commerce Amendment Act 2004 (2004 No 23) by inserting the words “or any other Act” after the words “under this Act”.
Assent to determination 17 (1) A determination in writing signed, or assented to in writing (whether sent by post, delivery, or electronic communication), by all the members of the Commission or, of a Division of the Commission, as the case may be, necessary to constitute a quorum shall be as valid and effectual as if it had been made at a meeting of the Commission or Division duly called and constituted by those members.

This section applies despite clause 13 of Schedule 5 of the Crown Entities Act 2004.
Compare: 1975 No 113 s 7A; 1983 No 144 s 6 (2) Section 17 was amended, as from 1 July 1990, by section 9 Commerce Amend­ ment Act 1990 (1990 No 41).

Section 17 was amended, as from 2 September 1996, by section 13(3) Com­ merce Amendment Act 1996 (1996 No 113) by substituting the words “or fac­ simile” for the words “or fascimile”.
Section 17 was amended, as from 25 January 2005, by section 200 Crown En­ tities Act 2004 (2004 No 115) by substituting the words “in writing (whether sent by post, delivery, or electronic communication)” for the words “by letter, telegram, cable, or telex or facsimile message”.

Subsection (2) was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
18 Ofﬁcers and employees [Repealed] Section 18 was substituted and sections 18A to 18D were inserted, as from 1 July 1990, by section 10 Commerce Amendment Act 1990 (1990 No 41).

Sections 18 to 18B were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

18A Personnel policy [Repealed] Section 18 was substituted and sections 18A to 18D were inserted, as from 1 July 1990, by section 10 Commerce Amendment Act 1990 (1990 No 41).
40 Reprinted as at 1 April 2009 Commerce Act 1986 Part 1 s 18D Sections 18 to 18B were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

18B Equal employment opportunities [Repealed] Section 18 was substituted and sections 18A to 18D were inserted, as from 1 July 1990, by section 10 Commerce Amendment Act 1990 (1990 No 41).

Sections 18 to 18B were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
18C Choice of procedure [Repealed] Section 18 was substituted and sections 18A to 18D were inserted, as from 1 July 1990, by section 10 Commerce Amendment Act 1990 (1990 No 41).

References in paragraph (a) to the “Employment Contracts Act 1991” and “col­ lective employment contract” replaced references to the “Labour Relations Act 1987” and “award or agreement” pursuant to section 176(1) Employment Con­ tracts Act 1991.
Paragraph (a) was substituted, as from 2 October 2000 by section 240 Employ­ ment Relations Act 2000 (2000 No 24).

Section 18C was repealed, as from 1 December 2004, by section 72 Employ­ ment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
18D Superannuation and retiring allowances (1) (2) Notwithstanding anything in this Act, any person who, im­ mediately before the commencement of this Act was assist­ ing the Commission by virtue of an appointment under sec­ tion 18(1) of this Act and was a contributor to the Govern­ ment Superannuation Fund under Part 2 of the Government Superannuation Fund Act 1956 shall be deemed, for the pur­ poses of the Government Superannuation Fund Act 1956, to be employed in the Government service so long as that person continues to be an ofﬁcer or employee of the Commission; and that Act shall apply to the person in all respects as if service as such an ofﬁcer or employee were Government service.
For the purposes of the Government Superannuation Fund Act 1956, the controlling authority in relation to any such person shall be the Commission.

41 Part 1 s 19 Commerce Act 1986 Reprinted as at 1 April 2009 (3) Subject to the Government Superannuation Fund Act 1956, nothing in subsection (2) of this section shall entitle any person to whom that subsection applies to become a contributor to the Government Superannuation Fund after ceasing to be a contributor to that Fund.
Section 18 was substituted and sections 18A to 18D were inserted, as from 1 July 1990, by section 10 Commerce Amendment Act 1990 (1990 No 41).

Subsection (1) was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

19 Money to be appropriated by Parliament for purposes of this Act [Repealed] Sections 19 to 23 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Funds of Commission [Repealed] Sections 19 to 23 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

Bank accounts [Repealed] Sections 19 to 23 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

Crown entity [Repealed] Section 22 was substituted, as from 21 December 1992, by section 42 Public Finance Amendment Act 1992 (1992 No 142).
Subsection (2) was substituted, as from 1 July 2001, by section 53 Public Audit Act 2001 (2001 No 10).

Sections 19 to 23 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

Investment of money [Repealed] Section 23 was amended, as from 1 July 1989, by section 86(1) Public Finance Act 1989 (1989 No 44) by substituting the words “pursuant to section 25 or the Public Finance Act 1989” for the words “pursuant to section 50 of the Public Finance Act 1977”.
20 21 22 23 42 Reprinted as at 1 April 2009 Commerce Act 1986 Part 1 s 26 24 25 26 (1) (2) (3) Sections 19 to 23 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

Exemption from income tax The income of the Commission shall be exempt from income tax.
Compare: 1975 No 113 s 19F; 1983 No 144 s 12 Functions of Commission in relation to dissemination of information In addition to the functions conferred on the Commission by this Act, the Commission shall make available or co­operate in making available information with respect to— (a) The carrying out of the functions and the exercise of the powers of the Commission under this Act; and The purposes and provisions of this Act.
(b) Compare: 1975 No 113 s 11(1A); 1983 No 144 s 7; Trade Practices Act 1974 (Aust), s 28(1)(a) Commission to have regard to economic policies of Government In the exercise of its powers under this Act, the Commission shall have regard to the economic policies of the Government as transmitted in writing from time to time to the Commission by the Minister.
The Minister shall cause every statement of economic policy transmitted to the Commission under subsection (1) of this section to be published in the Gazette and laid before Parlia­ ment as soon as practicable after so transmitting it.

For the avoidance of doubt, a statement of economic policy transmitted to the Commission under this section is not a di­ rection for the purposes of Part 3 of the Crown Entities Act 2004.
Compare: 1975 No 113 s 2A(1)(e); 1976 No 67 s 3; Trade Practices Act 1974 (Aust), s 29 Subsection (1) was amended, as from 1 July 1990, by section 12 Commerce Amendment Act 1990 (1990 No 41) by omitting the words “Part 5 of”.

Subsection (3) was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
43 Part 2 s 27 Commerce Act 1986 Reprinted as at 1 April 2009 Part 2 Restrictive trade practices Practices substantially lessening competition 27 Contracts, arrangements, or understandings substantially lessening competition prohibited (1) No person shall enter into a contract or arrangement, or ar­ rive at an understanding, containing a provision that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market.
(3) (2) No person shall give effect to a provision of a contract, ar­ rangement, or understanding that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market.

Subsection (2) of this section applies in respect of a contract or arrangement entered into, or an understanding arrived at, whether before or after the commencement of this Act.
(4) No provision of a contract, whether made before or after the commencement of this Act, that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market is enforceable.
Compare: Trade Practices Act 1974 (Aust), s 45(1), (2) 28 Covenants substantially lessening competition prohibited (1) No person, either on his own or on behalf of an associated Require the giving of a covenant; or person, shall— (a) (b) Give a covenant— that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market.
(2) No person, either on his own or on behalf of an associated per­ son, shall carry out or enforce the terms of a covenant that has the purpose, or has or is likely to have the effect, of substan­ tially lessening competition in a market.

Subsection (2) of this section applies to a covenant whether given before or after the commencement of this Act.
(4) No covenant, whether given before or after the commence­ ment of this Act, that has the purpose, or has or is likely to have (3) 44 Reprinted as at 1 April 2009 Commerce Act 1986 Part 2 s 29 the effect of substantially lessening competition in a market is enforceable.
(5) No person shall— (a) (b) Threaten to engage in particular conduct if a person who, but for subsection (4) of this section, would be bound by a covenant, does not comply with the terms of the covenant; or Engage in particular conduct because a person who, but for subsection (4) of this section, would be bound by a covenant, has failed to comply, or proposes or threatens to fail to comply, with the terms of the covenant.
(6) Where a person— (a) Issues an invitation to another person to enter into a contract containing a covenant; or (b) Makes an offer to another person to enter into a contract containing a covenant; or (7) (c) Makes it known that the person will not enter into a contract of a particular kind unless the contract contains a covenant of a particular kind or in particular terms,— that person shall, by issuing that invitation, making that offer, or making that fact known, be deemed to require the giving of the covenant.
For the purposes of this section, 2 persons shall be taken to be associated with each other in relation to a covenant or pro­ posed covenant if, but only if,— (a) One person is under an obligation (otherwise than in pursuance of the covenant or proposed covenant), whether formal or informal, to act in accordance with the directions, instructions, or wishes of the other per­ son in relation to the covenant or proposed covenant; or The persons are interconnected bodies corporate.
(b) Compare: Trade Practices Act 1974 (Aust), s 45B(1)­(3), (7) 29 (1) Contracts, arrangements, or understandings containing exclusionary provisions prohibited Subject to subsection (1A), for the purposes of this Act, a pro­ vision of a contract, arrangement, or understanding is an ex­ clusionary provision if— 45 Part 2 s 29 Commerce Act 1986 Reprinted as at 1 April 2009 (a) (b) (c) It is a provision of a contract or arrangement entered into, or understanding arrived at, between persons of whom any 2 or more are in competition with each other; and It has the purpose of preventing, restricting, or limiting the supply of goods or services to, or the acquisition of goods or services from, any particular person, or class of persons, either generally or in particular circumstances or on particular conditions, by all or any of the parties to the contract, arrangement, or understanding, or if a party is a body corporate, by a body corporate that is interconnected with that party; and The particular person or the class of persons to which the provision relates is in competition with one or more of the parties to the contract, arrangement or under­ standing in relation to the supply or acquisition of those goods or services.
(2) (1A) A provision of a contract, an arrangement, or an understanding that would, but for this subsection, be an exclusionary provi­ sion under subsection (1) is not an exclusionary provision if it is proved that the provision does not have the purpose, or does not have or is not likely to have the effect, of substantially less­ ening competition in a market.
For the purposes of subsection (1)(a) and (c), a person is in competition with another person if that person or any inter­ connected body corporate is, or is likely to be, or, but for the relevant provision, would be or would be likely to be, in com­ petition with the other person, or with an interconnected body corporate, in relation to the supply or acquisition of all or any of the goods or services to which that relevant provision re­ lates.
(3) No person shall enter into a contract, or arrangement, or arrive at an understanding, that contains an exclusionary provision.

(4) No person shall give effect to an exclusionary provision of a contract, arrangement, or understanding.

Subsection (4) of this section applies to an exclusionary pro­ vision of a contract or arrangement made, or understanding arrived at, whether before or after the commencement of this Act.
(5) 46 Reprinted as at 1 April 2009 Commerce Act 1986 Part 2 s 30 (6) No exclusionary provision of a contract, whether made before or after the commencement of this Act, is enforceable.

Compare: Trade Practices Act 1974 (Aust), ss 4D, 45(1)­(3) Subsection (1) was substituted, as from 1 July 1990, by section 13 Commerce Amendment Act 1990 (1990 No 41).
Subsection (1) was amended, as from 26 May 2001, by section 7(1) Commerce Amendment Act 2001 (2001 No 32) by substituting the words “Subject to sub­ section (1A), for” for the word “For”.

See section 26 of that Act as to proceed­ ings barred or commenced before 26 May 2001.

Subsection (1A) was inserted, as from 26 May 2001, by section 7(2) Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceed­ ings barred or commenced before 26 May 2001.
Subsection (2) was amended, as from 26 May 2001, by section 7(3) Commerce Amendment Act 2001 (2001 No 32) by substituting the expression “and (c)” for the words “of this section”.

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
Price ﬁxing 30 Certain provisions of contracts, etc, with respect to prices deemed to substantially lessen competition (1) Without limiting the generality of section 27 of this Act, a pro­ vision of a contract, arrangement, or understanding shall be deemed for the purposes of that section to have the purpose, or to have or to be likely to have the effect, of substantially less­ ening competition in a market if the provision has the purpose, or has or is likely to have the effect of ﬁxing, controlling, or maintaining, or providing for the ﬁxing, controlling, or main­ taining, of the price for goods or services, or any discount, al­ lowance, rebate, or credit in relation to goods or services, that are— (a) (b) Supplied or acquired by the parties to the contract, ar­ rangement, or understanding, or by any of them, or by any bodies corporate that are interconnected with any of them, in competition with each other; or Resupplied by persons to whom the goods are supplied by the parties to the contract, arrangement, or under­ standing, or by any of them, or by any bodies corporate that are interconnected with any of them in competition with each other.
(2) The reference in subsection (1)(a) of this section to the supply or acquisition of goods or services by persons in competition 47 Part 2 s 31 Commerce Act 1986 Reprinted as at 1 April 2009 with each other includes a reference to the supply or acquisi­ tion of goods or services by persons who, but for a provision of any contract, arrangement, or understanding would be, or would be likely to be, in competition with each other in rela­ tion to the supply or acquisition of the goods or services.
Compare: Trade Practices Act 1974 (Aust), s 45A(1), (7), (8) 31 (1) Joint venture pricing exempt from application of section 30 For the purposes of this section— (a) Joint venture means an activity in trade— (i) (ii) Carried on by 2 or more persons, whether or not in partnership; or Carried on by a body corporate for the purpose of enabling 2 or more persons to carry on that activ­ ity jointly by means of their joint control, or by means of their ownership of shares in the capital, of that body corporate or an interconnected body corporate: (b) A reference to a contract or arrangement entered into, or an understanding arrived at for the purposes of a joint venture shall, in relation to a joint venture by way of an activity carried on by a body corporate in terms of paragraph (a)(ii) of this subsection, be read as including a reference to the memorandum and articles of associ­ ation, rules, or other document that constitute or consti­ tutes, or is or are to constitute, that body corporate.
(2) Nothing in section 30 of this Act applies to a provision of a contract or arrangement entered into, or an understanding ar­ rived at for the purposes of a joint venture, to the extent that the provision relates to— (a) The joint supply by the parties to the joint venture, or the supply by the parties to the joint venture in proportion to their respective interests in the joint venture, of goods jointly produced by those parties in pursuance of the joint venture; or The joint supply by the parties to the joint venture of services in pursuance of the joint venture, or the supply by the parties to the joint venture in proportion to their (b) 48 Reprinted as at 1 April 2009 Commerce Act 1986 Part 2 s 33 (c) respective interests in the joint venture, of services in pursuance of, and made available as a result of, the joint venture; or In the case of a joint venture carried on by a body cor­ porate in terms of subsection (1)(a)(ii) of this section,— The supply by that body corporate of goods pro­ (i) duced by it in pursuance of the joint venture; or The supply by that body corporate of services in pursuance of the joint venture, not being services supplied on behalf of the body corporate by a person who is the owner of shares in the capital of the body corporate, or a body corporate that is interconnected with such a person.
(ii) Compare: Trade Practices Act 1974 (Aust), ss 4J, 45A(2) Certain recommendations as to prices for goods and services exempt from application of section 30 Nothing in section 30 of this Act applies to a provision of a contract, arrangement, or understanding, to the extent that the provision recommends or provides for the recommending of the price for, or a discount, allowance, rebate or credit in re­ lation to goods or services where the parties to the contract, or arrangement, or understanding include not less than 50 per­ sons (bodies corporate that are interconnected being counted as a single person) who supply or acquire, in trade, goods or services to which the provision applies.
Compare: Trade Practices Act 1974 (Aust), s 45A(3) Joint buying and promotion arrangements exempt from application of section 30 Nothing in section 30 of this Act applies to a provision of a contract, arrangement, or understanding that— (a) Relates to the price for goods or services to be collect­ ively acquired, whether directly or indirectly, by parties to the contract, arrangement, or understanding; or Provides for joint advertising of the price for the resup­ ply of goods so acquired.
(b) Compare: Trade Practices Act 1974 (Aust), s 45A(4) 49 32 33 Part 2 s 34 Commerce Act 1986 Reprinted as at 1 April 2009 34 Certain provisions of covenants with respect to prices deemed to substantially lessen competition (1) Without limiting the generality of section 28 of this Act, a covenant shall be deemed for the purposes of that section to have the purpose, or to have or to be likely to have the ef­ fect, of substantially lessening competition in a market if the covenant has the purpose or has or is likely to have the effect of ﬁxing, controlling, or maintaining, or providing for the ﬁxing, controlling or maintaining of the price for goods or services, or any discount, allowance, rebate, or credit in relation to goods or services, that are— (a) Supplied or acquired by the persons giving the covenant or the persons entitled to the beneﬁt of the covenant, or by any of them, or by bodies corporate that are inter­ connected with any of them, in competition with each other; or Resupplied by persons to whom the goods are supplied by the persons giving the covenant or the persons en­ titled to the beneﬁt of the covenant, or by any of them, or by bodies corporate that are interconnected with any of them, in competition with each other.
(b) The reference in subsection (1)(a) of this section to the supply or acquisition of goods or services by persons in competition with each other includes a reference to the supply or acquisi­ tion of goods or services by persons who, but for the covenant, would be in competition with each other in relation to the sup­ ply or acquisition of the goods or services.
Compare: Trade Practices Act 1974 (Aust), s 45C Practices substantially lessening competition conditional upon authorisation Contracts or covenants subject to authorisation not prohibited under certain conditions [Repealed] Section 35 was repealed, as from 26 May 2001, by section 8 Commerce Amend­ ment Act 2001 (2001 No 32).

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
(2) 35 50 Reprinted as at 1 April 2009 Commerce Act 1986 Part 2 s 36A Taking advantage of market power The heading “Taking advantage of market power” was substituted for the pre­ vious heading “Use of Dominant Position in a Market”, as from 26 May 2001, by section 9(1) Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
Taking advantage of market power 36 (1) Nothing in this section applies to any practice or conduct to which this Part applies that has been authorised under Part 5.
(2) A person that has a substantial degree of power in a market (b) must not take advantage of that power for the purpose of— (a) restricting the entry of a person into that or any other market; or preventing or deterring a person from engaging in com­ petitive conduct in that or any other market; or eliminating a person from that or any other market.
(c) For the purposes of this section, a person does not take advan­ tage of a substantial degree of power in a market by reason only that the person seeks to enforce a statutory intellectual property right, within the meaning of section 45(2), in New Zealand.

For the purposes of this section, a reference to a person in­ cludes 2 or more persons that are interconnected.
Compare: Trade Practices Act 1974 (Aust), s 46 (3) (4) Subsection (2) was substituted, as from 1 July 1990, by section 14 Commerce Amendment Act 1990 (1990 No 41).

Sections 36 and 36A were substituted, as from 26 May 2001, by section 9(1) Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
36A Taking advantage of market power in trans­Tasman markets (1) Nothing in this section applies to any practice or conduct to which this Part applies that has been authorised under Part 5.

(2) A person must not, for any of the purposes speciﬁed in sub­ section (3), take advantage of the person’s substantial degree of power (if any)— (a) (b) (c) in a market; or in a market in Australia; or in a market in New Zealand and Australia.
51 Part 2 s 36B Commerce Act 1986 Reprinted as at 1 April 2009 (3) (4) (5) The purposes are as follows: (a) restricting the entry of a person into a market that is not a market exclusively for services: preventing or deterring a person from engaging in com­ petitive conduct in a market that is not a market exclu­ sively for services: eliminating a person from a market that is not a market exclusively for services.
(b) (c) For the purposes of this section, a person does not take advan­ tage of a substantial degree of power in a market by reason only that the person seeks to enforce— (a) a statutory intellectual property right, within the mean­ ing of section 45(2), in New Zealand: (b) a statutory intellectual property right in Australia.

For the purposes of this section, a reference to a person in­ cludes 2 or more persons that are interconnected.
Compare: Trade Practices Act (Aust), s 46 The original section 36A was inserted, as from 1 July 1990, by section 15 Com­ merce Amendment Act 1990 (1990 No 41).

Sections 36 and 36A were substituted, as from 26 May 2001, by section 9(1) Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
36B Purposes may be inferred The existence of any of the purposes speciﬁed in section 36 or section 36A, as the case may be, may be inferred from the conduct of any relevant person or from any other relevant cir­ cumstances.

Section 36B was inserted, as from 26 May 2001, by section 9(1) Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceed­ ings barred or commenced before 26 May 2001.
Resale price maintenance Resale price maintenance by suppliers prohibited 37 (1) No person shall engage in the practice of resale price mainten­ ance.

For the purposes of this section a person engages in the prac­ tice of resale price maintenance if that person (in this section (2) 52 Reprinted as at 1 April 2009 Commerce Act 1986 Part 2 s 37 (3) referred to as the supplier) does any of the acts referred to in subsection (3) of this section.
The acts referred to for the purposes of subsection (2) of this section are— (a) (b) (c) (d) (e) The supplier making it known to another person that the supplier will not supply goods to the other person unless the other person agrees not to sell those goods at a price less than a price speciﬁed by the supplier: The supplier inducing, or attempting to induce, another person not to sell, at a price less than a price speciﬁed by the supplier, goods supplied to the other person by the supplier or by a third person who, directly or indirectly, has obtained the goods from the supplier: The supplier entering or offering to enter into an agree­ ment, for the supply of goods to another person, where one of the terms is or would be that the other person will not sell the goods at a price less than a price speciﬁed, or that would be speciﬁed, by the supplier: The supplier withholding the supply of goods to another person for the reason that the other person— (i) Has not agreed to the condition mentioned in paragraph (a) of this subsection; or (ii) Has sold, or is likely to sell, goods supplied to him by the supplier, or goods supplied to him by a third person who, directly or indirectly, has obtained the goods from the supplier, at a price less than a price speciﬁed by the supplier as the price below which the goods are not to be sold: The supplier withholding the supply of goods to another person for the reason that a third person who, directly or indirectly, has obtained, or wishes to obtain, goods from the other person— (i) Has not agreed not to sell those goods at a price less than a price speciﬁed by the supplier; or (ii) Has sold or is likely to sell goods supplied or to be supplied to that third person, by the other person, at a price less than a price speciﬁed by the supplier as the price below which the goods are not to be sold.
53 Part 2 s 38 Commerce Act 1986 Reprinted as at 1 April 2009 (4) For the purposes of subsection (3) of this section,— (a) Where the supplier makes it known, in respect of any goods, that the price below which those goods are not to be sold is a price speciﬁed by another person in respect of those goods, or in respect of goods of a like descrip­ tion, that price shall be deemed to have been speciﬁed, in respect of the ﬁrst­mentioned goods, by the supplier: (b) Where a set form, method, or formula is speciﬁed by or on behalf of the supplier and a price may be ascertained by calculation from, or by reference to, that set form, method, or formula, that price shall be deemed to have been speciﬁed by the supplier: (c) Where the supplier makes it known, in respect of any goods, that the price below which those goods are not to be sold is a price ascertained by calculation from or by reference to a set form, method, or formula speciﬁed by another person in respect of those goods, or in respect of goods of a like description, that price shall be deemed to have been speciﬁed, in respect of the ﬁrst­mentioned goods, by the supplier: (d) Where the supplier makes a statement to another person of a price that is likely to be understood by that person as the price below which goods are not to be sold, that price shall be deemed to have been speciﬁed by the supplier as the price, below which the goods are not to be sold: Anything done by a person acting on behalf of, or by arrangement with, the supplier shall be deemed to have been done by the supplier.
(e) (5) For the purposes of this section, sale includes advertise for sale, display for sale, and offer for sale, and sell, selling, and sold have corresponding meanings.
Resale price maintenance by others prohibited 38 (1) No person (in this section referred to as the third party) shall— (a) Make it known to another person that the third party proposes to engage in conduct, whether alone or in con­ cert with any other person, that will hinder or prevent the supply of any goods to, or the acquisition of any 54 Reprinted as at 1 April 2009 Commerce Act 1986 Part 2 s 38 (2) (b) goods from, that person unless that person agrees not to sell those goods at a price less than the price speciﬁed by the third party; or Engage in conduct, whether alone or in concert with any other person, that will hinder or prevent the supply of goods to, or the acquisition of goods from, another person for the purpose of inducing that person not to sell those goods at a price less than a price speciﬁed by the third party.
For the purposes of subsection (1) of this section,— (a) Where the third party makes it known, in respect of any goods, that the price below which those goods are not to be sold is a price speciﬁed by another person in respect of those goods, or in respect of goods of a like description, that price shall be deemed to have been speciﬁed in respect of the ﬁrst­mentioned goods, by the third party: (b) Where a set form, method, or formula is speciﬁed by or on behalf of the third party and a price may be ascer­ tained by calculation from, or by reference to, that set form, method, or formula, that price shall be deemed to have been speciﬁed by the third party: (c) Where the third party makes it known, in respect of any goods, that the price below which those goods are not to be sold is a price ascertained by calculation from or by reference to a set form, method, or formula speciﬁed by another person in respect of those goods, or in respect of goods of a like description, that price shall be deemed to have been speciﬁed, in respect of the ﬁrst­mentioned goods, by the third party: (d) Where the third party makes a statement to another per­ son of a price that is likely to be understood by that per­ son as the price below which goods are not to be sold, that price shall be deemed to have been speciﬁed by the third party as the price below which the goods are not to be sold: Anything done by a person acting on behalf of, or by arrangement with, the third party shall be deemed to have been done by the third party.
(e) 55 Part 2 s 39 Commerce Act 1986 Reprinted as at 1 April 2009 (3) 39 For the purposes of this section sale includes advertise for sale, display for sale, and offer for sale, and sell, selling, and sold have corresponding meanings.
(b) Recommended prices For the purposes of section 37(3)(b) of this Act, a supplier of any goods is not to be taken as inducing, or attempting to induce, another person not to sell those goods at a price less than a price speciﬁed by the supplier merely because— (a) A statement of a price is applied or used in relation to the goods or is applied to a covering, label, reel, or thing if the statement is preceded by the words recommended price; or The supplier has given notiﬁcation in writing to the other person (not being a notiﬁcation in the form of a statement applied to the goods or to any covering, label, reel, or thing as mentioned in paragraph (a) of this sub­ section) of the price that the supplier recommends as appropriate for the sale of those goods, if the notiﬁca­ tion, and each writing that refers, whether expressly or by implication, to the notiﬁcation, includes a statement to the effect that the price is a recommended price only and there is no obligation to comply with the recom­ mendation.
Compare: Trade Practices Act 1974 (Aust), s 97 40 Withholding the supply of goods For the purposes of section 37(3)(d) and (e) of this Act, the supplier shall be deemed to withhold the supply of goods to another person if— (a) The supplier refuses or fails to supply those goods to, or as requested by, the other person; or The supplier refuses to supply those goods except on terms that are disadvantageous to the other person; or In supplying those goods to the other person, the sup­ plier treats that person less favourably, whether in re­ spect of time, method, or place of delivery, or otherwise, than the supplier treats other persons to whom the sup­ plier supplies the same or similar goods; or (b) (c) 56 Reprinted as at 1 April 2009 Commerce Act 1986 Part 2 s 42 (d) The supplier causes or procures a person to act in rela­ tion to the supply of goods in the manner speciﬁed in paragraphs (a), (b), or (c), as the case may be, of this section.
Compare: Trade Practices Act 1974 (Aust), s 98 41 Preventing the supply of goods For the purposes of section 38 of this Act,— (a) (ii) The supply of goods shall be deemed to be prevented if— (i) The supply of those goods is refused except on terms that are disadvantageous to the person ac­ quiring the goods; or The supply of those goods is on terms which are less favourable, whether in respect of time, method, or place of delivery, or otherwise, than the person who supplies the goods treats other persons to whom the same or similar goods are supplied: (b) (ii) The acquisition of goods shall be deemed to be pre­ vented if— (i) The acquisition of those goods is refused except on terms that are disadvantageous to the person supplying the goods; or The acquisition of those goods is on terms which are less favourable, whether in respect of time, method, or place of delivery, or otherwise, than the person who acquires the goods treats other persons from whom the same or similar goods are acquired.
42 Special evidentiary provisions in respect of certain resale price maintenance practices (1) Where, in proceedings under this Act against a supplier for a contravention of section 37(3)(d) or section 37(3)(e) of this Act it is proved that— (a) The supplier has acted in a manner referred to in section 40 of this Act; and 57 Part 2 s 43 Commerce Act 1986 Reprinted as at 1 April 2009 (b) During a period ending immediately before the supplier so acted, the supplier had been supplying goods of the kind withheld either to— (i) The person in respect of whom the contravention is alleged; or (ii) A person carrying on a similar business to that person; and (c) During a period of 6 months immediately before the supplier so acted, the supplier became aware of a mat­ ter or circumstance capable of constituting a reason re­ ferred to in section 37(3)(d) or (e) of this Act— it shall be presumed, in the absence of evidence to the contrary, that the supplier so acted on account of that matter.
(2) Nothing in subsection (1) of this section applies in respect of terms imposed by a supplier that are disadvantageous or treat­ ment that is less favourable than the supplier accords other per­ sons if the terms or treatment consists only of a requirement by the supplier as to the time at which, or the form in which, payment was to be made or as to the giving of security to se­ cure payment.
Compare: Trade Practices Act 1974 (Aust), s 100(1), (2) (2) Statutory exceptions 43 (1) Nothing in this Part of this Act applies in respect of any act, matter, or thing that is, or is of a kind, speciﬁcally authorised by any enactment or Order in Council made under any Act.
For the purposes of subsection (1) of this section, an enactment or Order in Council does not provide speciﬁc authority for an act, matter, or thing if it provides in general terms for that act, matter, or thing, notwithstanding that the act, matter, or thing requires or may be subject to approval or authorisation by a Minister of the Crown, statutory body or a person holding any particular ofﬁce, or, in the case of a rule made or an act, matter, or thing done pursuant to any enactment, approval or authorisation by Order in Council.
(3) No act, matter, or thing authorised under section 7(2)(i) of the Sharebrokers Amendment Act 1981 or section 70(1)(n) of the Real Estate Agents Act 1976 as enacted immediately before 58 Reprinted as at 1 April 2009 Commerce Act 1986 Part 2 s 44 the commencement of this Act, shall be taken to be speciﬁcally authorised under subsection (1) of this section.
Compare: 1975 No 113 ss 22(7), 27(3)(c); 1976 No 67 ss 15(1), 20(2)(b) Other exceptions 44 (1) Nothing in this Part of this Act applies— (a) (c) (d) (e) (f) To the entering into of a contract, or arrangement, or arriving at an understanding between partners none of whom is a body corporate in so far as it contains a provi­ sion in relation to the terms of the partnership or the con­ duct of the partnership business or in relation to compe­ tition between the partnership and a party to the con­ tract, arrangement, or understanding while that party is, or after that party ceases to be, a partner: (b) To the entering into of a contract of service or a contract for the provision of services in so far as it contains a pro­ vision by which a person, not being a body corporate, agrees to accept restrictions as to the work, whether as an employee or otherwise, in which that person may en­ gage during, or after the termination of, the contract: To the entering into of a contract for, or the giving or requiring the giving of a covenant in connection with, the sale of a business or shares in the capital of a body corporate carrying on a business in so far as it contains a provision that is solely for the protection of the pur­ chaser in respect of the goodwill of the business: To the entering into of a contract, or arrangement, or arriving at an understanding in so far as it contains a provision obligating a person to comply with or apply standards of dimension, design, quality, or performance prepared or approved by the Standards Association of New Zealand or by any association or body prescribed for the purpose of this paragraph by regulations made under this Act: To the entering into of a contract, or arrangement, or arriving at an understanding in so far as it contains a provision that relates to the remuneration, conditions of 59 Part 2 s 44 Commerce Act 1986 Reprinted as at 1 April 2009 (g) (h) (i) employment, hours of work, or working conditions of employees: To the entering into of a contract, or arrangement, or
 arriving at an understanding in so far as it contains a provision that relates exclusively to the export of goods from New Zealand or exclusively to the supply of ser­ vices wholly outside New Zealand, if full and accurate particulars of the provision (not including particulars of prices for goods or services but including particulars of any method of ﬁxing, controlling, or maintaining such prices) were furnished to the Commission before the ex­ piration of 15 working days after the date on which the contract or arrangement was made or the understanding was arrived at, or 60 working days after the commence­ ment of this Act, whichever is the later: To any act done, otherwise than in trade, in concert by users of goods or services against the suppliers of those goods or services: To any act done to give effect to a provision of a con­ tract, arrangement, or understanding, or to a covenant referred to in paragraphs (a) to (g) of this subsection.
(a) (1A) Nothing in this Part (except sections 36 and 36A) applies to— the entering into of a contract or arrangement, or arriv­ ing at an understanding, or the giving or requiring the giving of a covenant, if the only parties, or (in the case of a covenant or proposed covenant) the only persons who are or would be respectively bound by, or entitled to the beneﬁt of, the covenant or proposed covenant, are, or would be, interconnected bodies corporate: any act done to give effect to a provision of a con­ tract, arrangement, or understanding, or to a covenant referred to in paragraph (a).
(b) (2) Nothing in this Part of this Act applies— (a) To the entering into of a contract, or arrangement, or arriving at an understanding in so far as it contains a provision exclusively for the carriage of goods by sea from a place in New Zealand to a place outside New Zealand or from a place outside New Zealand to a place in New Zealand; or 60 Reprinted as at 1 April 2009 Commerce Act 1986 Part 2 s 45 (3) (b) To any act done to give effect to a provision of a con­ tract, arrangement, or understanding referred to in para­ graph (a) of this subsection.
For the purposes of subsection (2) of this section, a provision of a contract, arrangement, or understanding is not a provision exclusively for the carriage of goods by sea if it relates to the carriage of goods to or from a ship or the loading or unloading of a ship.

Compare: Trade Practices Act 1974 (Aust), s 51(2), (2A) Subsection (1)(b) was repealed, as from 26 May 2001, by section 10(1) Com­ merce Amendment Act 2001 (2001 No 32).
See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

Subsection (1A) was inserted, as from 26 May 2001, by section 10(2) Com­ merce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

Subsection (3) was inserted, as from 31 August 1990, by section 11(1) Port Companies Amendment Act 1990 (1990 No 120).
45 Exceptions in relation to intellectual property rights (1) Nothing in this Part of this Act, except sections 36, 36A, 37, and 38 of this Act, applies— (a) To the entering into of a contract or arrangement or ar­ riving at an understanding in so far as it contains a pro­ vision authorising any act that would otherwise be pro­ hibited by reason of the existence of a statutory intel­ lectual property right; or To any act done to give effect to a provision of a con­ tract, arrangement, or understanding referred to in para­ graph (a) of this subsection.
(b) (2) (3) For the purposes of subsection (1) of this section, a statu­ tory intellectual property right means a right, privilege, or en­ titlement that is conferred, or acknowledged as valid, by or under— (a) (b) (c) (d) (e) (f) For the purposes of subsection (2) of this section,— The Patents Act 1953; or The Designs Act 1953; or the Trade Marks Act 2002; or The Copyright Act 1994; or The Plant Variety Rights Act 1987; or The Layout Designs Act 1994.
61 Part 2 s 46 Commerce Act 1986 Reprinted as at 1 April 2009 (a) A person who has applied for a patent in accordance with the Patents Act 1953 and ﬁled the complete speci­ ﬁcation in relation to the application shall, until the ap­ plication is determined, be deemed to have been granted the patent to which the application relates: (b) A person who has made an application for the regis­ tration of a design in accordance with section 7 of the Designs Act 1953 shall, until the application is deter­ mined, be deemed to be the registered proprietor of the design: A person who has made an application in accordance with section 32 of the Trade Marks Act 2002 for regis­ tration of a trade mark shall, until the application is de­ termined, be deemed to be the registered proprietor of the trade mark: (c) (d) A person who has made an application in accordance with section 5 of the Plant Variety Rights Act 1987 shall, until the application is determined, be deemed to have been granted the plant variety rights to which the appli­ cation relates.
Section 45 was substituted, as from 1 July 1990, by section 16(1) Commerce Amendment Act 1990 (1990 No 41).

See section 16(2) and (3) of that Act for the transitional provisions.

Section 45 was substituted, as from 1 January 1995, by section 42 Layout De­ signs Act 1994 (1994 No 116).

Subsection (2)(c) was substituted, as from 20 August 2003, by section 201 Trade Marks Act 2002 (2002 No 49).

See clause 2 Trade Marks Act 2002 Commencement Order 2003 (SR 2003/188).
Subsection (2)(d) was substituted, as from 1 January 1995, by section 236(1) Copyright Act 1994 (1994 No 143).

Subsection (3)(c) was amended, as from 20 August 2003, by section 201 Trade Marks Act 2002 (2002 No 49) by substituting the words “section 32 of the Trade Marks Act 2002” for the words “section 26 of the Trade Marks Act 1953”.

See clause 2 Trade Marks Act 2002 Commencement Order 2003 (SR 2003/188).
Saving in respect of business acquisitions Nothing in this Part of this Act applies— (a) To the entering into of a contract or arrangement or the arriving at of an understanding in so far as the contract, arrangement, or understanding contains a provision that 46 62 Reprinted as at 1 April 2009 Commerce Act 1986 Part 3 s 47 (b) provides for the acquisition or disposition of assets of a business or shares; or To any act done to give effect to a provision of a con­ tract, arrangement, or understanding that provides for the acquisition or disposition of assets of a business or shares.
The original section 46 was repealed, as from 1 January 1991, by section 17 Commerce Amendment Act 1990 (1990 No 41).

A new section 46 was inserted, as from 2 September 1996, by section 3 Com­ merce Amendment Act 1996 (1996 No 113).

Part 3 Business acquisitions Part 3 (comprising sections 47 to 51) was substituted, as from 1 January 1991, by a new Part 3 (comprising sections 47 and 48) by section 18 Commerce Amend­ ment Act 1990 (1990 No 41).
(2) Certain acquisitions prohibited 47 (1) A person must not acquire assets of a business or shares if the acquisition would have, or would be likely to have, the effect of substantially lessening competition in a market.

For the purposes of this section, a reference to a person in­ cludes 2 or more persons that are interconnected or associated.
For the purposes of this section, a person is associated with another person if that person is able, whether directly or indi­ rectly, to exert a substantial degree of inﬂuence over the activ­ ities of the other.

(3) (4) A person is not able to exert a substantial degree of inﬂuence over the activities of another person for the purposes of sub­ section (3) by reason only of the fact that— (a) (b) Compare: Trade Practices Act 1974 s 50 (Aust).
those persons are in competition in the same market; or 1 of them supplies goods or services to the other.

Part 3 (comprising sections 47 to 51) was substituted, as from 1 January 1991, by a new Part 3 (comprising sections 47 and 48) by section 18 Commerce Amend­ ment Act 1990 (1990 No 41).

Section 47 was substituted, as from 26 May 2001, by section 11(1) Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceed­ ings barred or commenced before 26 May 2001.
63 Part 3 s 48 Commerce Act 1986 Reprinted as at 1 April 2009 Bare transfer of market dominance excluded [Repealed] Part 3 (comprising sections 47 to 51) was substituted, as from 1 January 1991, by a new Part 3 (comprising sections 47 and 48) by section 18 Commerce Amend­ ment Act 1990 (1990 No 41).

Section 48 was repealed, as from 26 May 2001 by section 11(3) Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceed­ ings barred or commenced before 26 May 2001.
Application to building societies [Repealed] Sections 49 to 51 were repealed, as from 1 January 1991, by section 18 Com­ merce Amendment Act 1990 (1990 No 41).

Certain merger or takeover proposals require clearance or authorisation [Repealed] Sections 49 to 51 were repealed, as from 1 January 1991, by section 18 Com­ merce Amendment Act 1990 (1990 No 41).
Contracts subject to condition of clearance or authorisation [Repealed] Sections 49 to 51 were repealed, as from 1 January 1991, by section 18 Com­ merce Amendment Act 1990 (1990 No 41).

Part 4 Regulated goods or services Part 4: substituted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
Part 4 (comprising sections 52 to 57C) was substituted for the previous Part 4 (comprising sections 52 to 57), as from 26 May 2001, by section 12 Commerce Amendment Act 2001 (2001 No 32).

The previous Part heading read: “Control of Prices”, and the previous subheading read: “Declaration of Price Control”.

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
Subpart 1—Preliminary provisions Subpart 1: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).

48 49 50 51 64 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 52B 52 Overview of Part This Part provides for the regulation of the price and quality of goods or services in markets where there is little or no com­ petition and little or no likelihood of a substantial increase in competition.
Section 52: substituted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Part 4 (comprising sections 52 to 57C) was substituted for the previous Part 4 (comprising sections 52 to 57), as from 26 May 2001, by section 12 Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceed­ ings barred or commenced before 26 May 2001.
52A Purpose of Part (1) The purpose of this Part is to promote the long­term beneﬁt of consumers in markets referred to in section 52 by promot­ ing outcomes that are consistent with outcomes produced in competitive markets such that suppliers of regulated goods or services— (a) have incentives to innovate and to invest, including in replacement, upgraded, and new assets; and have incentives to improve efﬁciency and provide ser­ vices at a quality that reﬂects consumer demands; and share with consumers the beneﬁts of efﬁciency gains in the supply of the regulated goods or services, including through lower prices; and are limited in their ability to extract excessive proﬁts.
(d) In this Part, the purpose set out in subsection (1) applies in place of the purpose set out in section 1A.

Section 52A: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
(b) (c) (2) 52B Outline of Part (1) This Part provides— (a) (b) generic provisions for imposing any 1 or more of 3 types of regulation on goods or services (see subpart 2); and for the Commission to determine input methodologies applying to the supply of goods or services regulated under this Part (see subpart 3).
(2) The different types of regulation under this Part are as follows: 65 Part 4 s 52C Commerce Act 1986 Reprinted as at 1 April 2009 (a) (b) (c) information disclosure regulation, under which regu­ lated suppliers are required to disclose information in accordance with requirements determined by the Com­ mission (see subpart 4): negotiate/arbitrate regulation, under which regulated suppliers are required to negotiate with other parties on prices and quality, and, if negotiation is unsuccessful, to enter into binding arbitration (see subpart 5): price­quality regulation, of which there are 2 types: (i) price­quality default/customised regulation, under which default price­quality paths are set for regulated suppliers, but individual suppliers may seek a customised price­quality path instead (see subpart 6); and individual price­quality regulation, under which the Commission sets a price­quality path for an individual regulated supplier (see subpart 7).
(ii) (3) (4) electricity lines services (subpart 9): gas pipeline services (subpart 10): services at certain airports (subpart 11).

Regulation of the following services is dealt with by subparts 9 to 11: (a) (b) (c) This section is only a guide.

Section 52B: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52C Interpretation In this Part, unless the context otherwise requires,— claw­back has the meaning given to it by section 52D consumer (other than in sections 54C, 54D, and 55A) means a person that consumes or acquires regulated goods or services information disclosure requirement means a requirement that applies to a supplier of goods or services that are subject to information disclosure regulation, and is speciﬁed in a sec­ tion 52P determination input methodology means a description of any methodology, process, rule, or matter that includes any of the matters listed in section 52T and that is published by the Commission under section 52W; and, in relation to particular goods or services, 66 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 52C means any input methodology, or all input methodologies, that relate to the supply, or to suppliers, of those goods or services inquiry means an inquiry by the Commission carried out in accordance with sections 52H to 52J price— (a) means any 1 or more of individual prices, aggregate prices, or revenues (whether in the form of speciﬁc numbers, or in the form of formulas by which speciﬁc numbers are derived); and includes any related terms of payment (b) pricing methodologies means methodologies for setting the prices of individual goods or services, or classes of goods or services, and includes methodologies for setting different prices for different customer groups publicly available, in relation to making a document or infor­ mation available, means that— (a) the document or information is available for inspection, free of charge, on an Internet site that is publicly acces­ sible at all reasonable times; and a copy of the document or information is available for inspection at all reasonable times, free of charge, at the head ofﬁce of the person that is required to make it pub­ licly available or, if the person is the Minister, at the head ofﬁce of the department responsible for the admin­ istration of this Act; and copies of the document may be purchased by any
 person at a reasonable price (b) (c) publicly disclose, in relation to information required to be dis­ closed under information disclosure regulation, means to dis­ close information to the public in the manner required by a section 52P determination regulated means regulated under this Part regulated goods or services means goods or services that are declared to be regulated— (a) (b) regulated supplier means a person to whom a section 52P de­ termination applies in relation to particular goods or services by Order in Council made under section 52N; or by any of subparts 9 to 11 67 Part 4 s 52D Commerce Act 1986 Reprinted as at 1 April 2009 section 52P determination means a determination by the Commission under section 52P that sets out how each type of regulation that applies to particular regulated goods or services applies to a supplier of those goods or services; and, in relation to particular goods or services, means every section 52P determination relevant to the regulation of those goods or services.
Section 52C: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52D Meaning and application of claw­back (1) A reference to the Commission applying claw­back is a refer­ ence to the Commission doing either of the following: (a) requiring a supplier to lower its prices on a temporary basis in order to compensate consumers for some or all of any over­recovery that occurred under the prices previously charged by the supplier: allowing a supplier to recover some or all of any short­ fall in its revenues that occurred under the prices previ­ ously charged by the supplier.
(b) (2) (3) If the Commission requires a supplier to lower its prices, it must also require that the lowering of prices must be spread over time in order to minimise undue ﬁnancial hardship to the supplier.

If the Commission allows a supplier to recover any shortfall, it must require that any recovery must be spread over time in order to minimise price shocks to consumers.

Section 52D: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Subpart 2—Regulating particular goods or services Subpart 2: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
52E Overview of process if regulation imposed on goods or services The process for imposing regulation under this subpart on par­ ticular goods or services involves the following steps: (1) 68 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 52G (a) (b) (c) (d) the Commission holds an inquiry into whether, and if so how, to regulate the goods or services, and then makes a recommendation to the Minister under section 52K: the Minister considers the Commission’s recommenda­ tion and decides whether or not to recommend to the Governor­General that regulation be imposed and, if so, which type or types of regulation: if the Minister decides to recommend regulation, an Order in Council may be made under section 52N that makes the goods or services subject to regulation and identiﬁes the type or types of regulation that apply: for each type of regulated goods or services, the Com­ mission makes a section 52P determination specifying how the applicable type or types of regulation apply to a supplier of the regulated goods or services.
(2) This section is only a guide.

Section 52E: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52F Effect of goods or services being subject to regulation (1) If goods or services are subject to regulation of a particular type, every regulated supplier of those goods or services must comply with— (a) the requirements of this Part relating to that type of regulation; and every section 52P determination applying to the sup­ plier.
(b) (2) (3) Sections 86 to 87C (which relate to offences and civil proceed­ ings relating to contraventions of this Part) apply to a regulated supplier on and from the date on which the supplier is obliged to comply with a relevant section 52P determination.

The Commission is entitled to exercise any of its powers under this Act for the purpose of monitoring compliance by regulated suppliers with regulation under this Part.
Section 52F: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52G When goods or services may be regulated (1) Goods or services may be regulated under this Part only if— 69 Part 4 s 52H Commerce Act 1986 Reprinted as at 1 April 2009 (a) (b) (c) the goods or services are supplied in a market where there is both— (i) (ii) little or no competition; and little or no likelihood of a substantial increase in competition; and there is scope for the exercise of substantial market power in relation to the goods or services, taking into account the effectiveness of existing regulation or ar­ rangements (including ownership arrangements); and the beneﬁts of regulating the goods or services in meet­ ing the purpose of this Part materially exceed the costs of regulation.
(2) In any consideration of this test, the part of the test in subsec­ tion (1)(c) need not be considered unless the parts of the test in subsection (1)(a) and (b) are satisﬁed.

Section 52G: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Commission inquiry Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
52H How inquiry triggered The Commission— (1) (a) must hold an inquiry if required to do so by the Minister; and (b) may hold an inquiry on its own initiative.

(2) Any requirement by the Minister must— (a) (b) be in writing; and specify the date by which the Commission must make a recommendation under section 52K to the Minister.

Section 52H: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52I Commission inquiry into particular goods or services (1) In conducting an inquiry into particular goods or services, the Commission must consider— (a) whether the test in section 52G is satisﬁed in relation to the goods or services; and 70 Reprinted as at 1 April 2009 (b) (c) Commerce Act 1986 Part 4 s 52I if that test is satisﬁed, whether the goods or services should be regulated; and if so, how the goods or services should be regulated, including— how the goods or services should be deﬁned; and (i) (ii) which type or types of regulation (as set out in section 52B(2)) the goods or services should be subject to; and how that type or those types of regulation should apply to suppliers of the goods or services.
(iii) (2) As part of an inquiry into particular goods or services, the Commission— (a) must determine (and then apply) input methodologies for the supply of the goods or services, in accordance with subpart 3; and (b) must, when carrying out the analysis required by sec­ tion 52G(1)(c), undertake a qualitative analysis of all material long­term efﬁciency and distributional consid­ erations.
(3) As part of that qualitative analysis, the Commission must, as far as practicable,— (a) (b) (c) quantify material effects on allocative, productive, and dynamic efﬁciency; and quantify material distributional and welfare conse­ quences on suppliers and consumers; and assess the direct and indirect costs and risks of any type of regulation considered, including administrative and compliance costs, transaction costs, and spill­over ef­ fects.
(4) As part of an inquiry, the Commission must, when considering which type of regulation might be imposed,— (a) assess the beneﬁts of imposing different types of regula­ tion in meeting the purpose of this Part against the costs of imposing those types of regulation; and consider what would be the most cost­effective type or types of regulation in the circumstances.
(5) During an inquiry, the Commission may have regard to any other matters it considers necessary or desirable for the pur­ pose of the inquiry.

(b) 71 Part 4 s 52J Commerce Act 1986 Reprinted as at 1 April 2009 Section 52I: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52J Process of inquiry (1) At the start of an inquiry, the Commission must publish in the Gazette a notice setting out,— (a) (b) in the case of an inquiry required by the Minister, the Minister’s requirements; and in the case of an inquiry on the initiative of the Com­ mission, the terms of reference for the inquiry.

The notice must set out indicative time frames and key steps.
(2) (3) During the course of an inquiry, the Commission— (a) may publish, in whatever way it considers appropriate, further notices, consultation documents, or papers; and (b) must give interested persons a reasonable opportunity to give their views; and (c) may hold 1 or more conferences; and (d) must have regard to any views received from interested persons within any time frames set.

(4) Before the end of an inquiry, the Commission must publish a proposed recommendation for consultation.
Section 52J: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52K Commission’s recommendation following inquiry (1) At the end of an inquiry, having considered the matters in sec­ tion 52I, the Commission must make a recommendation to the Minister on whether, in its opinion, the goods or services should be regulated.
If the recommendation is that particular goods or services should be regulated, the recommendation must state the following: (a) how the goods or services should be speciﬁed: (b) which type or types of regulation should apply to the (2) (c) (d) goods or services: what input methodologies apply: if information disclosure regulation is recommended, the material provisions of the information disclosure re­ quirements: 72 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 52L (e) (f) (g) if negotiate/arbitrate regulation is recommended, the material provisions of the negotiation process and ar­ bitration process: if default/customised price­quality regulation is recom­ mended, the default price path and quality standards: if individual price­quality regulation is recommended, the material provisions to apply.
The Minister must publish the Commission’s recommenda­ tion, and may do so in whatever way he or she considers ap­ propriate.

To avoid doubt, a recommendation by the Commission is not a determination of the Commission.

Section 52K: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

(3) (4) Order in Council imposing regulation Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
52L Minister’s consideration (1) The Minister must consider any recommendation of the Com­ mission made under section 52K.

(2) As part of that consideration, the Minister— (a) must consult with the relevant sector Minister (such as the Minister of Energy or the Minister of Transport); and (b) may request further information or advice from the Commission.
(3) If the Minister proposes, contrary to the recommendation of the Commission, that the goods or services should be regu­ lated, or that they should be subject to a type of regulation not recommended by the Commission, the Minister must ask the Commission for written advice on what the material provi­ sions of the relevant section 52P determination would be likely to be if the goods or services were subject to the type or types of regulation proposed by the Minister.
(4) Any request by the Minister under subsection (3), and the Commission’s advice given following that request, must be made publicly available.

73 Part 4 s 52M Commerce Act 1986 Reprinted as at 1 April 2009 (5) If the Commission receives a request under subsection (3), it may, at its discretion,— (a) (b) consult with interested parties; or reopen its inquiry, in which case section 52J applies with all necessary modiﬁcations.
Section 52L: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52M Minister’s decision and recommendation (1) Having considered the Commission’s recommendation in ac­ cordance with section 52L and any advice given following a request under section 52L(3), the Minister must— (a) decide whether, in the opinion of the Minister, the goods or services should be regulated; and if the goods or services are to be regulated, decide which type or types of regulation are to apply; and (b) (2) (3) (c) make a recommendation to that effect, if the goods or services are to be regulated.
The Minister’s decision may be the same as, or different from, the Commission’s recommendation under section 52K.

If the Minister’s decision is different from the Commission’s recommendation, the Minister must set out the reasons for the decision and make the decision, with the reasons, publicly available.

Section 52M: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52N Order in Council imposing regulation (1) The Governor­General may, on the recommendation of the Minister made under section 52M, make an Order in Coun­ cil imposing regulation on particular goods or services.

The order must— (a) (b) declare that the goods or services are regulated; and state which type or types of regulation the goods or ser­ vices are subject to.
The order may identify the goods or services it relates to by reference to goods or (with all necessary modiﬁcations) ser­ vices— (2) (3) 74 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 52O (a) (b) (c) supplied in or for delivery within speciﬁed regions, areas, or localities in New Zealand; or supplied in different quantities, qualities, grades, or classes; or supplied by or to or for the use of different persons or classes of persons; or any or all of paragraphs (a) to (c).
(d) Subsection (3) applies so that any part or element of goods or services can be dealt with separately.

The order must include an expiry date, which must be a date not later than 20 years after its date of commencement.

The order is a regulation within the meaning of the Regula­ tions (Disallowance) Act 1989 and the Acts and Regulations Publication Act 1989.

Section 52N: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
(4) (5) (6) 52O Revocation or amendment of Order in Council (1) An Order in Council made under section 52N in respect of par­ ticular goods or services may not be revoked or signiﬁcantly amended unless the Commission has held an inquiry into the goods or services.
In subsection (1), signiﬁcantly amended means amended in a way that— (a) alters the type or types of regulation applying to the goods or services; or (2) (b) materially alters the goods or services to which the regu­ lation applies, so that either— (i) the goods or services, or any of them, are no longer regulated; or goods or services that were not identiﬁed in the original order are now subject to regulation.
(ii) (3) An Order in Council made under section 52N may be amended in any other material way only after the Commission has con­ sulted with interested parties, but may be amended in a non­ material way without prior consultation.

Section 52O: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
75 Part 4 s 52P Commerce Act 1986 Reprinted as at 1 April 2009 Commission determination about how regulation applies Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).

52P Determinations by Commission under this section (1) The Commission must make determinations under this section specifying how the relevant forms of regulation apply to sup­ pliers of regulated goods or services.
(2) Determinations must be made,— (a) (b) in the case of goods or services declared to be regulated by an Order in Council under section 52N, as soon as practicable after the Order in Council is made; and in the case of goods or services declared to be regulated under any of subparts 9 to 11, in accordance with sec­ tions 54I, 54J, 54K, 55E, and 56E.
(3) Determinations must— (a) (b) set out, for each type of regulation to which the goods or services are subject, the requirements that apply to each regulated supplier; and set out any time frames (including the regulatory periods) that must be met or that apply; and specify the input methodologies that apply; and be consistent with this Part.
(c) (d) It is not necessary for a single determination to address all matters relating to particular regulated goods or services, or to a supplier of regulated goods or services, and different parts of any determination may come into effect at different times.
If a determination under this section is made following an in­ quiry and a recommendation under section 52K, the require­ ments referred to in subsection (3)(a) must not differ in any material respect from the recommendation, or (if applicable) from any advice given to the Minister under section 52L(3).
(4) (5) (6) A determination under this section may require a supplier to comply with the requirements set out in any other determin­ ation that has been made under this section in respect of regu­ lated goods or services of the same type.
The Commission must, as soon as practicable after making a determination under this section,— (7) 76 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 52Q (a) give a copy of the determination to each supplier to whom the determination relates; and (b) publish a summary of it in the Gazette; and (c) make the whole determination publicly available.

Each supplier to whom the determination relates must comply with the requirements imposed by the determination.
Section 52P: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

(8) 52Q Amendment of section 52P determination (1) A section 52P determination may be amended in a material way only after the Commission has consulted with interested parties, but may be amended in a non­material way without prior consultation.

(2) However, the Commission is not required to conduct an in­ quiry before amending a determination.
(3) An amendment forms part of the determination it amends.

(4) An amendment comes into force on the date speciﬁed in the amendment, which must be (except in the case of an amend­ ment relating to a customised price­quality path that takes ef­ fect under section 53ZA(3)) a date on or after the date on which it, or a summary of it, is published in the Gazette.
The Commission must, as soon as practicable after making an amendment,— (a) give a copy of the amendment to each supplier to whom the determination relates; and publish the amendment, or a summary of the amend­ ment, in the Gazette; and (5) (b) (c) make a copy of the determination, as amended by the amendment, publicly available.

Section 52Q: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Subpart 3—Input methodologies Subpart 3: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).

77 Part 4 s 52R Commerce Act 1986 Reprinted as at 1 April 2009 52R Purpose of input methodologies The purpose of input methodologies is to promote certainty for suppliers and consumers in relation to the rules, requirements, and processes applying to the regulation, or proposed regula­ tion, of goods or services under this Part.
Section 52R: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52S How published input methodologies apply Every relevant input methodology relating to the supply of particular goods or services that is published under section 52W must be applied,— (a) if the goods or services are regulated, by every regulated supplier of the goods or services in accordance with the relevant section 52P determination; and in all cases, by every person entitled or required under this Act to recommend, decide, or determine— (i) whether or how regulation under this Part should apply to the goods or services; or the prices or quality standards applying to the goods or services.
(ii) (b) Section 52S: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52T Matters covered by input methodologies (1) The input methodologies relating to particular goods or ser­ vices must include, to the extent applicable to the type of regu­ lation under consideration,— (a) methodologies for evaluating or determining the fol­ lowing matters in respect of the supply of the goods or services: (i) (ii) cost of capital: valuation of assets, including depreciation, and treatment of revaluations: allocation of common costs, including between activities, businesses, consumer classes, and geo­ graphic areas: treatment of taxation; and (iii) (iv) pricing methodologies; and (b) 78 Reprinted as at 1 April 2009 (c) Commerce Act 1986 Part 4 s 52T regulatory processes and rules, such as— (i) the speciﬁcation and deﬁnition of prices, in­ cluding identifying any costs that can be passed through to prices (which may not include the legal costs of any appeals against input method­ ology determinations under this Part or of any appeals under section 91 or section 97); and identifying circumstances in which price­quality paths may be reconsidered within a regulatory period; and (ii) (d) matters relating to proposals by a regulated supplier for a customised price­quality path, including— (i) requirements that must be met by the regulated supplier, including the scope and speciﬁcity of information required, the extent of independent veriﬁcation and audit, and the extent of consult­ ation and agreement with consumers; and the criteria that the Commission will use to eval­ uate any proposal.
(ii) (2) (b) Every input methodology must, as far as is reasonably prac­ ticable,— (a) set out the matters listed in subsection (1) in sufﬁcient detail so that each affected supplier is reasonably able to estimate the material effects of the methodology on the supplier; and set out how the Commission intends to apply the input methodology to particular types of goods or services; and be consistent with the other input methodologies that relate to the same type of goods or services.
(3) Any methodologies referred to in subsection (1)(a)(iii) must not unduly deter investment by a supplier of regulated goods or services in the provision of other goods or services.

Section 52T: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
(c) 79 Part 4 s 52U Commerce Act 1986 Reprinted as at 1 April 2009 (2) (3) 52U When input methodologies must be determined (1) The Commission must determine input methodologies for the goods or services regulated under subparts 9 to 11 no later than 30 June 2010.

The Minister may, on the written request of the Commission, extend the deadline referred to in subsection (1) once, by a period of up to 6 months, in which case notice of the extension must be given in the Gazette.
The Commission must determine input methodologies for any goods or services that are the subject of an inquiry as soon as practicable after the Commission is satisﬁed that the parts of the test for the regulation of goods or services set out in paragraphs (a) and (b) of section 52G(1) are satisﬁed.

Section 52U: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52V Commission process for determining input methodologies (1) When the Commission begins work on an input methodology, it must publish a notice of intention to do so that— (a) (b) outlines the process that will be followed; and sets out the proposed time frames.
(2) During the course of its work on an input methodology, the Commission— (a) must publish a draft methodology; and (b) must give interested persons a reasonable opportunity to give their views on that draft methodology; and (c) may hold 1 or more conferences; and (d) must have regard to any views received from interested persons within any time frames set.
(3) Despite subsections (1) and (2), any work done or action taken (including any consultation) by the Commission on input methodologies before the commencement of this section may be treated by the Commission and any person consulted as work done or action taken under this section.

The Commission must consult with interested parties before deciding to treat earlier work or action as work or action done under this section.
Section 52V: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
(4) 80 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 52Y 52W Publication of input methodologies (1) The Commission must publish every input methodology, and every amendment to an input methodology,— (a) within 10 working days after the Commission deter­ mines the input methodology or amendment; and if the input methodology or an amendment is deter­ mined by the High Court on appeal, within 10 working days after the Commission receives a copy of the deci­ sion of the High Court.
(b) (2) (3) The publication must be by way of a notice in the Gazette setting out— (a) a brief description of the nature of the methodology and the goods or services to which it applies; and the reasons for determining that methodology; and how it is publicly available.

(b) (c) The Commission must make every input methodology, and every amended input methodology, publicly available as soon as the input methodology or amendment is published.
Section 52W: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52X Amendment of input methodologies If the Commission proposes to amend an input methodology by making a material change, section 52V applies as if the amendment were a new input methodology.

Section 52X: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52Y Review and date of publication of input methodologies (1) The Commission must review each input methodology no later than 7 years after its date of publication and, after that, at inter­ vals of no more than 7 years.

The date of publication of an input methodology is the date on which it is published under section 52W(1)(a) or, if it is subsequently published under section 52W(1)(b), the date of that later publication.
Section 52V applies, with all necessary modiﬁcations, as if the review were a new input methodology.

(2) (3) 81 Part 4 s 52Z Commerce Act 1986 Reprinted as at 1 April 2009 (4) Section 52W applies if, following a review, an input method­ ology is replaced or amended.

Section 52Y: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Appeals against input methodology determinations Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).

(2) 52Z Appeals against input methodology determinations (1) Any person who gave views on an input methodology deter­ mination to the Commission as part of the process under sec­ tion 52V, and who, in the opinion of the Court, has a signiﬁcant interest in the matter, may appeal to the High Court against the determination.
In this section and section 52ZA, input methodology deter­ mination means any of the following: (a) (b) the initial determination of an input methodology: any determination by the Commission that amends the input methodology: any determination by the Commission of an input meth­ odology following a review of the input methodology.
In determining an appeal against an input methodology deter­ mination, the Court may do any of the following: (a) (c) (b) decline the appeal and conﬁrm the input methodology set out in the determination: allow the appeal by— (i) (ii) amending the input methodology; or revoking the input methodology and substituting a new one; or referring the input methodology determination back to the Commission with directions as to the particular matters that require amendment.
(iii) The Court may only exercise its powers under subsection (3)(b) if it is satisﬁed that the amended or substituted in­ put methodology is (or will be, in the case of subsection (3)(b)(iii)) materially better in meeting the purpose of this Part, the purpose in section 52R, or both.
(3) (4) 82 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 53 (5) (6) If the Court allows an appeal, the Commission may seek clari­ ﬁcation from the Court on any matter for the purpose of im­ plementing the Court’s decision.

There is a right of appeal under section 97 to the Court of Appeal from any decision or order of the High Court under this section on a point of law only.

Section 52Z: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
(2) 52ZA Process for appeals (1) Any appeal under section 52Z must be brought within 20 working days after the date on which the input methodology determination is published.

The appeal must be by way of rehearing and must be con­ ducted solely on the basis of the documentary information and views that were before the Commission when it made its deter­ mination, and no party may introduce any new material during the appeal.
The High Court must sit with 2 lay members (unless the Court considers that only 1 is required).

Each of the lay members must have relevant experience and be appointed from the pool of people appointed under section 77 to be members of the Court for the purpose of hearing the appeal.

Section 77 applies, and section 77(14) is not limited by sub­ section (3) of this section.

Section 52ZA: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
(3) (4) (5) 53 (1) (2) Input methodology applies pending outcome of appeal The High Court may not stay the application of section 52S with respect to any input methodology published under section 52W until any appeal against it is ﬁnally determined.

Section 52S continues to apply with respect to every input methodology published under section 52W until any appeal against the input methodology is ﬁnally determined.
Section 53: substituted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

83 Part 4 s 53A Commerce Act 1986 Reprinted as at 1 April 2009 Part 4 (comprising sections 52 to 57C) was substituted for the previous Part 4 (comprising sections 52 to 57), as from 26 May 2001, by section 12 Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceed­ ings barred or commenced before 26 May 2001.
Subpart 4—Information disclosure regulation Subpart 4: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).

53A Purpose of information disclosure regulation The purpose of information disclosure regulation is to ensure that sufﬁcient information is readily available to interested per­ sons to assess whether the purpose of this Part is being met.

Section 53A: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53B Effect of being subject to information disclosure regulation Every supplier of goods or services that are subject to infor­ mation disclosure regulation must— (a) publicly disclose information in accordance with the in­ formation disclosure requirements set out in the rele­ vant section 52P determination; and supply to the Commission a copy of all information disclosed in accordance with the section 52P determin­ ation, within 5 working days after the information is ﬁrst made publicly available; and supply to the Commission, in accordance with a written notice by the Commission, any further statements, re­ ports, agreements, particulars, or other information re­ quired for the purpose of monitoring the supplier’s com­ pliance with the section 52P determination.
(b) (c) If a supplier of goods or services is subject to information dis­ closure regulation, the Commission— (a) may monitor and analyse all information disclosed in accordance with the information disclosure require­ ments; and (b) must, as soon as practicable after any information is publicly disclosed, publish a summary and analysis of (1) (2) 84 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 53C that information for the purpose of promoting greater understanding of the performance of individual regu­ lated suppliers, their relative performance, and the changes in performance over time.
Section 53B: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53C Section 52P determination to set out information disclosure requirements (1) A section 52P determination relating to goods or services that are subject to information disclosure regulation must— (a) (b) (c) (d) specify the goods or services to which it applies; and specify the suppliers to which it applies; and specify the information to be disclosed; and specify the manner in which the information is to be disclosed; and specify the form of disclosure; and specify when, and for how long, information must be disclosed; and specify the input methodologies that apply; and specify any other methodologies that are required in the preparation or compilation of the information.
Information required to be disclosed may include (without limitation) any or all of the following: (a) (g) (h) (e) (f) (2) ﬁnancial statements (including projected ﬁnancial state­ ments): asset values and valuation reports: prices, terms and conditions relating to prices, and pric­ ing methodologies: contracts: transactions with related parties: ﬁnancial and non­ﬁnancial performance measures: plans and forecasts, including (without limitation) plans and forecasts about demand, investments, prices, rev­ enues, quality and service levels, capacity and spare capacity, and efﬁciency improvements: asset management plans: quality performance measures and statistics: (b) (c) (d) (e) (f) (g) (h) (i) 85 Part 4 s 53D Commerce Act 1986 Reprinted as at 1 April 2009 (j) (k) assumptions, policies, and methodologies used or ap­ plied in these or other areas: consolidated information that includes information about unregulated goods or services, in which case section 53D applies.
(3) (4) The section 52P determination may do all or any of the fol­ lowing: (a) require disclosed information, or information from which disclosed information is derived (in whole or in part), to be veriﬁed by statutory declaration: require independent audits of disclosed information: require the retention of data on which disclosed infor­ mation is based, and associated documentation: exempt any person or class of persons, or provide for ex­ emptions, from any requirements of the determination, and provide for the revocation of exemptions: provide for transitional provisions: impose any other requirements that the Commission considers necessary or desirable to promote the purpose of information disclosure regulation.
(b) (c) (d) (e) (f) The section 52P determination may not require a supplier to publicly disclose any provision of an existing contract that, immediately before the goods or services became subject to in­ formation disclosure regulation, was not required by or under Part 4A (as deﬁned in section 54B) or any other enactment to be publicly disclosed.

Section 53C: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53D Consolidated information may also be required (1) The purpose of this section is to enable the Commission to monitor compliance with information disclosure regulation applying to regulated goods or services.

(2) A section 52P determination may require information referred to in subsection (3) to be disclosed only to the extent required to enable the purpose in subsection (1) to be met.
If a regulated supplier provides goods or services that are not subject to regulation under this Part (unregulated goods or services), the supplier may be required to disclose— (3) 86 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 53F (a) (b) (c) consolidated ﬁnancial statements, and any other infor­ mation referred to in section 53C, for all businesses (in­ cluding those related to the supply of unregulated goods or services) undertaken by that supplier; and consolidated ﬁnancial statements, and any other infor­ mation referred to in section 53C, for the supply of all unregulated goods or services in aggregate; and reconciliation between information provided under paragraphs (a) and (b) with information disclosed in accordance with information disclosure requirements applying to the regulated goods or services.
(4) If a supplier supplies more than 1 kind of regulated goods or services, the Commission may require the supplier to provide consolidated information and performance measures relating to all, or any combination of, the regulated goods or services.

Section 53D: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53E Charge for providing copies to public (1) A person who is required, by a section 52P determination, to provide copies of statements and information to the public on request may charge for providing those copies.

The charge must be no more than is reasonably required to recover the costs of providing those copies.

Section 53E: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
(2) 53F Limited exception to obligation to apply input methodologies (1) Despite section 52S, suppliers that are subject only to informa­ tion disclosure regulation do not have to apply the following input methodologies in accordance with that section: (a) (b) methodologies for evaluating or determining the cost of pricing methodologies: capital.
(2) However, to avoid doubt, subsection (1) does not affect any­ thing else in this subpart, and in particular does not affect— 87 Part 4 s 53G Commerce Act 1986 Reprinted as at 1 April 2009 (a) (b) section 53B(2) (which means the Commission may use the input methodologies referred to in subsection (1) to monitor and analyse information); and section 53C(2) (which means that suppliers may still be required to disclose information about the pricing meth­ odologies, and methodologies for evaluation or deter­ mining the cost of capital, that they do in fact use).
Section 53F: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Subpart 5—Negotiate/arbitrate regulation Subpart 5: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
53G Purpose of negotiate/arbitrate regulation The purpose of negotiate/arbitrate regulation is to encourage a supplier and its customers to reach agreement, through nego­ tiation, on the supplier’s prices and quality standards during a speciﬁed regulatory period, and to provide for binding arbitra­ tion if negotiation is unsuccessful.

Section 53G: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53H Overview of negotiate/arbitrate regulation (1) If a regulated supplier is subject to negotiate/arbitrate regula­ tion,— (a) the supplier must enter into negotiations with parties identiﬁed by the Commission in order to reach agree­ ment on the matters identiﬁed by the Commission (being the prices and quality standards associated with regulated goods or services) that will apply for the regulatory period speciﬁed by the Commission; and if the negotiations fail to reach a settlement of all the matters within the time frames set by the Commission, the parties must enter into arbitration to resolve the out­ standing matters; and the terms of the arbitration are set by the Commission, and the arbitral award is binding on the parties unless or until they agree to vary it.
(b) (c) 88 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 53I (2) 53I (1) This section is only a guide.

Section 53H: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Section 52P determination to set out requirements for application of negotiate/arbitrate regulation If negotiate/arbitrate regulation applies to regulated goods or services, the section 52P determination must set out the fol­ lowing: (a) (b) the parties to the negotiation or arbitration: the matters (including the prices and quality standards associated with the regulated goods or services) that the parties must agree to by negotiation, or are bound to by arbitral award: the period or periods for which any negotiated settle­ ment or arbitral award applies: a reference to the input methodologies that apply: the information that the parties must provide to the other parties and, if necessary, the arbitrator, and the time frames for that provision: the processes for negotiations, including the form of involvement by the parties, and the form, scope, and coverage of any negotiated settlement: the time frames for the negotiations (including stages in negotiations) and, in particular, the date by which, if ne­ gotiations are not complete, the parties must enter into arbitration to settle any remaining unresolved matters: the terms of any compulsory arbitration that takes place under section 53J, including its form, procedures, the allocation of costs, and powers of the arbitrator: the date by which the arbitral award must be made: the manner in which the parties must make publicly available any negotiated settlement, arbitral award, or both.
(c) (d) (e) (f) (g) (h) (i) (j) (2) The Commission may include in the determination any other matters it considers necessary or desirable to promote the pur­ pose of negotiate/arbitrate regulation.

89 Part 4 s 53J Commerce Act 1986 Reprinted as at 1 April 2009 (3) (4) (5) If the parties to a negotiation agree to arbitration, the arbitra­ tion may be on whatever terms they agree to, but must be com­ pleted within the time frames set for the negotiation.
The Commission may extend any time frames set out in a sec­ tion 52P determination.
The terms of arbitration set by the Commission must— (a) allow the parties a reasonable period within which to agree on an arbitrator but, if agreement is not reached within that period (or any extended period allowed under subsection (4)), the terms must provide that the Commission must appoint the arbitrator (and may not appoint itself as the arbitrator); and include provisions enabling the parties to enforce the arbitral award; and include a right of appeal to the High Court, exercisable by any party to the arbitration, on a point of law only.
(b) (c) Section 53I: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53J Compulsory arbitration (1) If a settlement is not reached (whether by negotiation or volun­ tary arbitration) within the time frame set by the Commission, the parties must enter into arbitration under this section on the terms set out in the section 52P determination.
The Arbitration Act 1996 does not apply to arbitration under this section, but the Commission may, in setting out the terms of the arbitration in the section 52P determination, apply any provisions of that Act to the arbitration.

The arbitrator’s role is to make an arbitral award that promotes the purpose of this Part.
If ﬁnal consumers of regulated goods or services are not di­ rectly represented as parties in the arbitration, the arbitrator must have particular regard to the effect of the outcome of the arbitration on those ﬁnal consumers.

The arbitral award is binding on the parties to the arbitration unless or until the parties agree to vary it.

Section 53J: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
(2) (3) (4) (5) 90 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 53M Subpart 6—Default/customised price­quality regulation Subpart 6: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
53K Purpose of default/customised price­quality regulation The purpose of default/customised price­quality regulation is to provide a relatively low­cost way of setting price­quality paths for suppliers of regulated goods or services, while allow­ ing the opportunity for individual regulated suppliers to have alternative price­quality paths that better meet their particular circumstances.

Section 53K: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53L Overview of default/customised price­quality regulation (1) If goods or services are subject to default/customised price­ quality regulation,— (a) the Commission sets default price­quality paths that ap­ ply for a regulatory period, and all regulated suppliers must apply those default price­quality paths; but individual suppliers may make a proposal to the Com­ mission for a customised price­quality path; and the Commission may set a customised price­quality path for the supplier, and that then applies for a set period instead of a speciﬁed default price­quality path.
(b) (c) (2) This section is only a guide.

Section 53L: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53M Content and timing of price­quality paths (1) Every price­quality path (whether a default price­quality path or a customised price­quality path under this subpart, or an individual price­quality path under subpart 7) must specify,— in relation to prices, either or both of the following with (a) respect to a speciﬁed regulatory period: (i) the maximum price or prices that may be charged by a regulated supplier: 91 Part 4 s 53M Commerce Act 1986 Reprinted as at 1 April 2009 (ii) the maximum revenues that may be recovered by a regulated supplier; and the quality standards that must be met by the regulated supplier; and the regulatory period.
(b) (c) (2) A price­quality path may include incentives for an individual supplier to maintain or improve its quality of supply, and those incentives may include (without limitation) any of the follow­ ing: (a) penalties by way of a reduction in the supplier’s maxi­ mum prices or revenues based on whether, or by what amount, the supplier fails to meet the required quality standards: rewards by way of an increase in the supplier’s maxi­ mum prices or revenue based on whether, or by what amount, the supplier meets or exceeds the required qual­ ity standards: consumer compensation schemes that set minimum standards of performance and require the supplier to pay prescribed amounts of compensation to consumers if it fails to meet those standards: reporting requirements, including special reporting re­ quirements in asset management plans, if the supplier fails to meet the quality standards.
(b) (c) (d) (3) Quality standards may be prescribed in any way the Commis­ sion considers appropriate (such as targets, bands, or formu­ lae) and may include (without limitation)— (a) (b) responsiveness to consumers; and in relation to electricity lines services, reliability of sup­ ply, reduction in energy losses, and voltage stability or other technical requirements.

(4) A regulatory period must be 5 years.


(5) However, the Commission may set a shorter period than 5 years if it considers that it would better meet the purposes of this Part, but in any event may not set a term less than 4 years.

Subsections (4) and (5) are subject to section 53W.
(6) (7) No default price­quality path applies to a supplier until the date speciﬁed in the relevant section 52P determination, which 92 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 53O must be a date at least 4 months after a summary of the deter­ mination is published in the Gazette under section 52P(7)(b).

Section 53M: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53N Monitoring compliance with price­quality paths For the purpose of monitoring compliance with a price­qual­ ity path (whether a default price­quality path or a customised price­quality path under this subpart, or an individual price­ quality path under subpart 7), the Commission may, in add­ ition to exercising its powers under section 98, issue a written notice to a regulated supplier requiring it to provide any or all of the following: (a) a written statement that states whether or not the sup­ plier has complied with the price­quality path applying to that supplier: a report on the written statement referred to in paragraph (a) that is signed by an auditor in accordance with any form speciﬁed by the Commission: sufﬁcient information to enable the Commission to properly determine whether all applicable price­quality paths have been complied with: a certiﬁcate, in the form speciﬁed by the Commission and signed by at least one director of the supplier, con­ ﬁrming the truth and accuracy of any information pro­ vided under this section.
(b) (c) (d) Section 53N: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Default price­quality path Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
53O Section 52P determination to set out requirements of default price­quality paths If default price­quality regulation applies to regulated goods or services, the section 52P determination must set out a default price­quality path that includes— 93 Part 4 s 53P Commerce Act 1986 Reprinted as at 1 April 2009 (a) (b) (c) (d) (e) (f) the starting prices that apply to the supply of the goods or services during the ﬁrst regulatory period; and the rate or rates of change in prices, relative to the con­ sumer price index, allowed during the ﬁrst regulatory period; and the quality standards that apply during the ﬁrst regula­ tory period; and the date or dates on which the default price­quality path (or any part of it) takes effect; and the annual date by which any proposal for a customised price­quality path must be received; and the annual date by which compliance must be demon­ strated in accordance with section 53N.
Section 53O: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53P Resetting starting prices, rates of change, and quality standards Before the end of the ﬁrst and every subsequent regulatory period, the Commission must amend the section 52P determin­ ation by setting out the starting prices (as referred to in section 53O(a)), rates of change (as referred to in section 53O(b)), and quality standards (as referred to in section 53O(c)) that apply for the following regulatory period.
In resetting starting prices, rates of change, and quality stan­ dards, the Commission must consult with interested parties.

The starting prices must be either— (a) the prices that applied at the end of the preceding regu­ latory period; or prices, determined by the Commission, that are based on the current and projected proﬁtability of each sup­ plier.

(b) Starting prices set in accordance with subsection (3)(b) must not seek to recover any excessive proﬁts made during any ear­ lier period.
Subject to subsection (8), the Commission must set only one rate of change per type of regulated goods or services (for ex­ ample, if the rate of change (x) is 1% in a CPI−x path, 1% must be the rate for all goods or services of that type).
(1) (2) (3) (4) (5) 94 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 53P (6) The rate of change must be based on the long­run average productivity improvement rate achieved by either or both of suppliers in New Zealand, and suppliers in other comparable countries, of the relevant goods or services, using whatever measures of productivity the Commission considers appropri­ ate.
(7) When setting the rate of change, the Commission may take into account the effects of inﬂation on the inputs of suppliers of the relevant goods or services.
The Commission may set alternative rates of change for a par­ ticular supplier— (a) (8) as an alternative, in whole or in part, to the starting prices set under subsection (3)(b) if, in the Commis­ sion’s opinion, this is necessary or desirable to minimise any undue ﬁnancial hardship to the supplier or to min­ imise price shock to consumers; or as an incentive (under section 53M(2)) for the supplier to improve its quality of supply.
(b) (9) Any alternative rates of change set under subsection (8) may include step changes.

(11) (10) The Commission may not, for the purposes of this section, use comparative benchmarking on efﬁciency in order to set starting prices, rates of change, quality standards, or incentives to improve quality of supply.
If starting prices, rates of change, and quality standards have not been set by way of an amendment to the relevant section 52P determination by the end of the regulatory period to which it applies, the starting prices, rates of change, and quality stan­ dards that apply at the end of the regulatory period continue to apply until the reset starting prices, rates of change, and qual­ ity standards are set.
Section 53P: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Customised price­quality paths Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
95 Part 4 s 53Q Commerce Act 1986 Reprinted as at 1 April 2009 53Q Supplier may propose customised price­quality path (1) At any time after a default price­quality path is set by the Com­ mission, a supplier that is (or is likely to be) subject to the default price­quality path may make a proposal to the Com­ mission for a customised price­quality path to apply to that supplier.
Every proposal must— (a) (2) comply with the input methodologies referred to in sec­ tion 52T(1)(d) relating to the process for, and content of, customised price­quality path proposals; and be made within the period, or by the annual date, spe­ ciﬁed for the purpose in the section 52P determination; and include the standard application fee for customised price­quality path proposals; and apply or adopt all relevant input methodologies.
(b) (c) (d) (3) A supplier may make only 1 proposal during a regulatory period, and may not make a proposal within the 12 months before a default price­quality path is due to be reset.

(4) A supplier that makes a proposal must make it publicly avail­ able as soon as practicable after it has been made to the Com­ mission.

Section 53Q: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53R Effect of making proposal for customised price­quality path A supplier that makes a proposal to the Commission— (a) (b) cannot withdraw the proposal; and is bound, for the regulatory period to which it applies, by any customised price­quality path that the Commis­ sion subsequently sets for the supplier.

Section 53R: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53S Preliminary assessment of proposal (1) Within 40 working days after receiving a proposal, the Com­ mission must determine whether the proposal complies with the input methodologies referred to in section 52T(1)(d) relat­ 96 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 53U (2) (3) (4) ing to the process for, and content of, customised price­quality path proposals.
If the proposal does not comply with those requirements, the Commission may, at its discretion,— (a) (b) discontinue any consideration of the proposal; or request the supplier to remedy the deﬁciencies in the proposal by providing additional information within 40 working days.

If the supplier fails to provide any additional information re­ quested by the Commission under subsection (2)(b), the Com­ mission may discontinue any consideration of the proposal.
If a proposal is discontinued under subsection (2) or (3), sec­ tion 53Q(3) does not apply and the supplier may make another proposal within the regulatory period (except in the 12 months before the default price­quality path is due to be reset).

Section 53S: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53T Process and timing for assessing proposal (1) Once the Commission decides that a proposal complies with the input methodologies relating to the process for, and content of, customised price­quality path proposals, it must— (a) (b) give notice that the proposal is under consideration, and how copies of the proposal may be obtained; and set a date for interested persons to make submissions on the proposal; and (c) have regard to any submissions made by that date.
The Commission must make a determination on a proposal for a customised price­quality path within 150 working days of receiving a complete proposal, subject to sections 53U and 53Z.

Section 53T: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

(2) 53U Extension of time frames The time frames speciﬁed in sections 53S and 53T may, with the agreement of the supplier and the Commission, each be extended by a total of up to 30 working days.
97 Part 4 s 53V Commerce Act 1986 Reprinted as at 1 April 2009 Section 53U: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

(2) 53V Determination setting customised price­quality path (1) The Commission may determine any customised price­quality path that the Commission considers appropriate for a supplier that has made a proposal.
To avoid doubt, and without limitation, in determining a cus­ tomised price­quality path that complies with section 53M the Commission may do any of the following: (a) set a price­quality path that is lower, or otherwise less favourable to the regulated supplier, than the default price­quality path that would otherwise apply: if it sets a lower or a higher price than applied under the default price­quality path, apply claw­back: with the agreement of the supplier, vary an input meth­ odology that would otherwise apply to the supplier.
(b) (c) (3) A customised price­quality path for a supplier is imposed by way of an amendment to the section 52P determination relat­ ing to the default/customised price­quality regulation applying to the supplier.

Section 53V: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53W Term of customised price­quality paths (1) A customised price­quality path applies for 5 years.
(2) However, the Commission may set a shorter period than 5 years if it considers this would better meet the purpose of this Part, but in any event may not set a term less than 3 years.

Section 53W: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53X What happens when customised price­quality path ends (1) When the customised price­quality path of a supplier of goods or services ends, the supplier is subject to the default price­ quality path that is generally applicable to other suppliers of those goods or services.
The starting prices that apply at the beginning of the default price­quality path are those that applied at the end of the cus­ (2) 98 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 53Z (3) (4) tomised price­quality path unless, at least 4 months before the end of the customised price­quality path, the Commission ad­ vises the supplier that different starting prices must apply.
The supplier remains subject to the default price­quality path until— (a) the end of the period for which it applies to other sup­ pliers; or a new customised price­quality path begins to apply to the supplier.

(b) To avoid doubt, a supplier who is or was subject to a cus­ tomised price­quality path may apply in accordance with sec­ tion 53Q for another customised price­quality path.

Section 53X: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53Y Commission’s costs in setting customised price­quality (1) (2) path The Commission’s costs in setting a customised price­quality path must be met by the person who makes the proposal for a customised price­quality path.

The costs may be recovered in whatever manner the Commis­ sion determines.

Section 53Y: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53Z Prioritisation by Commission (1) (2) The Commission is not required to consider any more than 4 proposals for a customised price­quality path relating to the same type of regulated goods or services in any one year.
If the Commission receives more than 4 proposals for a cus­ tomised price­quality path relating to the same type of regu­ lated goods or services in any one year, the Commission— (a) may defer the additional proposals to a subsequent year; but (b) must prioritise its consideration of the proposals in ac­ cordance with the criteria in subsection (3).
(3) The criteria for Commission decisions on priorities are as fol­ lows: (a) quality and completeness of the initial proposal: 99 Part 4 s 53ZA Commerce Act 1986 Reprinted as at 1 April 2009 (b) urgency of any proposed additional investment (com­ pared to historic rates of investment) required to meet consumer requirements on quality: (c) materiality of the proposal relative to the size and rev­ enues of the supplier.
Section 53Z: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53ZA What happens if Commission does not make decision within time frame This section applies if the Commission does not make a de­ termination within 150 working days of receiving a complete proposal (or within any extended time agreed under section 53U).
If the regulated supplier has not complied, in the Com­ mission’s opinion, with any reasonable exercise by the Commission of its information­gathering powers under sec­ tion 53ZD or 98, the default price­quality path continues in effect at the close of that period, and the Commission must notify the supplier accordingly.

If the regulated supplier has so complied, the customised pro­ posal made under section 53Q takes effect at the close of that period.
If a customised price­quality path proposal takes effect under subsection (3), the Commission must immediately prepare an amendment to the relevant section 52P determination, setting out the customised price­quality path applying to the supplier.

Section 53ZA: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
What happens to price­quality paths if input methodologies change Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).

(1) (2) (3) (4) 100 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 53ZC 53ZB What happens to price­quality paths if input methodologies change (1) Default or customised price­quality paths may not be reopened within a regulatory period on the grounds of a change in an input methodology, except as provided in subsection (2).
Every default and customised price­quality path must be reset by the Commission in accordance with section 53P if— (a) (2) an input methodology changes as a result of an appeal under section 52Z; and had the changed methodology applied at the time the price­quality path was set, it would have resulted in a materially different path being set.

(b) (3) When resetting a default or customised price­quality path under subsection (2), the Commission must apply claw­back.
Section 53ZB: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Subpart 7—Individual price­quality regulation Subpart 7: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
53ZC Price­quality path for individual businesses (1) If individual price­quality regulation applies to goods or services supplied by a supplier, the Commission may set the price­quality path for that supplier using any process, and in any way, it thinks ﬁt, but must use the input methodologies that apply to the supply of those goods or services.
The following provisions of subpart 6 apply (with all neces­ sary modiﬁcations) where individual price­quality regulation is imposed: (a) (b) Section 53ZC: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

sections 53M and 53N: section 53ZB.

(2) Subpart 8—Miscellaneous provisions Subpart 8: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
101 Part 4 s 53ZD Commerce Act 1986 Reprinted as at 1 April 2009 53ZD Powers of Commission under this Part For the purpose of carrying out its functions and exercising its powers under this Part, the Commission may, in addition to exercising its powers under section 98, do any of the follow­ ing: (a) (ii) (iii) consult with any person the Commission considers may assist it: investigate any of the following: (i) how effectively and efﬁciently any supplier of the goods or services is supplying the goods or services: how any formula, methodology, or price­quality path being considered by the Commission may be applied, or how any formula, methodology, or price­quality provision determined or authorised by the Commission has been applied, in consid­ ering proposed prices or quality standards: how any conditions relating to the quality of the goods or services may be, or are being, fulﬁlled: examine, consider, or investigate any activity, cost, rev­ enue, transfer, asset valuation, circumstance, or event that is occurring or that has occurred during the previ­ ous 7 years: by notice in writing, require any supplier of the goods or services— (i) to prepare and produce forecasts, forward plans, or other information; and to apply any methodology speciﬁed by the Com­ mission in the preparation of forecasts, forward plans, or other information: (ii) by notice in writing, require any supplier of the goods or services, or any previous supplier of them that the Commission has reason to believe may have informa­ tion or documents relevant to the investigation, audit, or inquiry, at the time and place speciﬁed in the notice, to do either or both of the following: (i) produce or supply to the Commission documents and information in relation to the goods or ser­ (b) (c) (d) (e) 102 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 53ZE (f) (ii) vices, or the prices or operations of the person in respect of the goods or services: to answer any questions about any matter that the Commission has reason to believe may be relevant to the investigation, audit, or inquiry: by notice in writing, require any supplier of the goods or services, at the time and place speciﬁed in the no­ tice, to produce or supply to the Commission an expert opinion from an appropriately qualiﬁed person, or from a member of a class of appropriately qualiﬁed persons, as determined by the Commission in relation to the mat­ ters in paragraph (b), (c), (d), or (e)(i).
Section 53ZD: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53ZE Levies (1) Every supplier of regulated goods or services (or prescribed class of suppliers of regulated goods or services) must pay to the Minister the levy determined in accordance with regula­ tions made under subsection (2).
The Governor­General may, by Order in Council made on the recommendation of the Minister, make regulations— (a) (2) specifying the amount of levies, or method of calculat­ ing or ascertaining the amount of levies, on the basis that the estimated costs of performing the Commission’s functions, powers, and duties under this Part, and of collecting the levy money, should be met fully out of levies: including, or providing for the inclusion, in levies of any shortfall in recovering those actual costs: refunding, or providing for refunds of, any over­recov­ ery of those actual costs: providing different levies for different classes of suppli­ ers or goods or services: specifying the ﬁnancial year or part ﬁnancial year to which those levies apply, and applying to that ﬁnancial year or part ﬁnancial year and each subsequent ﬁnancial year until revoked or replaced: (b) (c) (d) (e) 103 Part 4 s 53ZF Commerce Act 1986 Reprinted as at 1 April 2009 (f) (g) providing for the payment and collection of those levies: for the ﬁrst ﬁnancial year to which the levy applies to a supplier or class of suppliers, including in the levy amount or method costs incurred by the Commission in connection with preparing itself to perform, and per­ forming, its functions, powers, and duties under this Part, irrespective of the fact— (i) that the regulations are made and come into effect after that year; or that the goods or services become regulated af­ ter the costs were incurred (for example, costs incurred by the Commission in preparing input methodologies): (ii) (h) (i) requiring payment of a levy for a ﬁnancial year or part ﬁnancial year, irrespective of the fact that the regula­ tions may be made after that ﬁnancial year has com­ menced: exempting or providing for exemptions from, and pro­ viding for waivers of, the whole or any part of the levy for any case or class of cases.
The amount of any unpaid levy is recoverable in any court of competent jurisdiction as a debt due to the Crown.

The Minister must consult with the suppliers of regulated goods or services, or representatives of those suppliers, before making a recommendation for the purposes of subsection (2).

Section 53ZE: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
(3) (4) 53ZF Material may be incorporated by reference Schedule 5 applies if the Commission wishes to incorporate material by reference in any of the following documents: (a) (b) Section 53ZF: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

a section 52P determination: an input methodology.
104 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 54 53ZG Power to exempt disclosure of commercially sensitive (1) (2) (3) (4) (5) information The Commission may, on application, exempt any person or class of persons, in respect of any information or class of infor­ mation that the Commission considers to be commercially sen­ sitive, from any obligation to make that information publicly available as part of the requirements of information disclos­ ure regulation, negotiate/arbitrate regulation, or customised price­quality regulation.
The Commission may grant the exemption on any terms and conditions that it thinks ﬁt.

The exemption must be granted by notice in the Gazette, and takes effect from the date speciﬁed in the exemption (which must not be earlier than the date of the Gazette notice).

The Commission may, in like manner, vary or revoke any ex­ emption.
The Commission must keep a list of all current exemptions made by it under this section available for public inspection free of charge during normal ofﬁce hours of the Commission at the ofﬁces of the Commission.

(6) An exemption under this section is not a regulation within the meaning of the Regulations (Disallowance) Act 1989 or the Acts and Regulations Publication Act 1989.

Section 53ZG: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Subpart 9—Electricity lines services Subpart 9: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54 (1) Overview of how subpart applies This subpart provides— (a) that all suppliers of electricity lines services are subject to information disclosure regulation; and that suppliers of electricity lines services that are not consumer­owned are also subject to price­quality regu­ lation; and for the transition to the new regime provided for in this Part.
(b) (c) 105 Part 4 s 54A Commerce Act 1986 Reprinted as at 1 April 2009 (2) This section is only a guide.

Section 54: substituted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).

54A Overview of when subpart applies (1) (2) However, sections 54D(3) and 54N apply as soon as the rest This subpart applies on and after 1 April 2009.

(3) of this Part comes into force.

This section is only a guide.


Section 54A: inserted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
54B Interpretation for subpart In this subpart, unless the context otherwise requires,— administrative settlement means a deed entered into by the Commission and a supplier of electricity lines services in re­ spect of a breach of a threshold or a breach of a default price­ quality path referred to in section 54J consumer­owned has the meaning given in section 54D electricity lines services has the meaning given in section 54C Part 4A means Part 4A of this Act as in force immediately before its repeal by the Commerce Amendment Act 2008 threshold means a threshold set by the Commission under Part 4A for the declaration of control in relation to large electricity lines businesses Transpower means Transpower New Zealand Limited or any subsidiary of, or successor to, that company.
Section 54B: inserted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).

54C Meaning of electricity lines services (1) In this subpart, unless the context otherwise requires, electri­ city lines services means the conveyance of electricity by line in New Zealand.
(a) (2) However, none of the following are electricity lines services: conveying electricity solely for the supplier’s own con­ sumption or for the consumption of the supplier’s asso­ ciates: 106 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 54C (b) (c) (d) (e) (f) (g) (h) conveying electricity only from a generator to the na­ tional grid or from the national grid to a generator: conveying electricity (other than via the national grid) only from a generator to a local distribution network or from a local distribution network to a generator: conveying electricity by lines that are not connected, directly or indirectly, to the national grid: conveying electricity only by a line or lines that are mostly in competition with a line or lines operated by another supplier of electricity lines services that is not an associate of the person, provided that the competition is actual competition and not potential competition: conveying electricity if the total circuit length of all of the prescribed voltage electric lines provided by the supplier (or over which electricity is conveyed by the supplier, as the case may be) is less than 25 kilometres: conveying electricity if the total amount of electricity conveyed to consumers by the supplier is less than 20 gigawatt hours per annum: conveying electricity if the total number of consumers to whom the supplier conveys electricity is less than 500.
(3) (4) The prescribed voltage electric lines, the electricity conveyed, or the number of consumers to whom electricity is conveyed, when measured in relation to a supplier include, for the pur­ poses of subsection (2)(f) to (h), the lines provided by, electri­ city conveyed by, or number of consumers of, any associate of the supplier.
In this section, unless the context otherwise requires,— associate has the same meaning as in section 12 of the Elec­ tricity Industry Reform Act 1998 consumer has the same meaning as in section 2(1) of the Elec­ tricity Act 1992 lines has the same meaning as in section 2(1) of the Electricity Act 1992 national grid has the same meaning as in section 2(1) of the Electricity Act 1992 107 Part 4 s 54D Commerce Act 1986 Reprinted as at 1 April 2009 prescribed voltage electric line means a line that is capable of conveying electricity at a voltage equal to or greater than 3.3 kilovolts.
Section 54C: inserted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
54D Deﬁnition of consumer­owned (1) (b) In this subpart, unless the context otherwise requires, a sup­ plier is consumer­owned if it is a supplier that meets the fol­ lowing criteria: (a) all the control rights and all the equity return rights (within the meaning of section 3 of the Electricity In­ dustry Reform Act 1998) in the supplier are held by 1 or more customer trusts, community trusts, or customer co­operatives; and the trustees of each customer trust or community trust, or the directors of each customer co­operative, as the case may be, that is referred to in paragraph (a) are elected solely by the persons who are consumers of the supplier, and at least 90% of the persons who are con­ sumers of the supplier at the time of the election are eligible to vote in those elections; and at least 90% of the persons who are consumers of the supplier as at an income distribution resolution date beneﬁt from that income distribution; and (d) the supplier has fewer than 150 000 ICPs.
In this section, unless the context otherwise requires,— community trust, in relation to a supplier, is a trust in respect of which— (a) at least 90% of the income beneﬁciaries comprise per­ sons who are a class or classes identiﬁed by reference to their domicile or location or operation within the geo­ graphic area or areas of operation of the supplier; and at least 90% of its income distributions are paid to those beneﬁciaries or for purposes related to that geographic area or areas (b) (c) consumer has the same meaning as in section 2(1) of the Elec­ tricity Act 1992, and includes, for the purposes of references to the election of trustees in this section and section 54H, any (2) 108 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 54D person who is listed on an electoral roll as a resident of an ad­ dress that consumes the electricity in question customer co­operative, in relation to a supplier, means a co­operative company (as deﬁned in section 2(1) of the Co­operative Companies Act 1996) that has the character­ istics described in the deﬁnition of customer trust in this subsection, applied as if references to trusts were to co­opera­ tives, references to income beneﬁciaries were to shareholders, and all other necessary modiﬁcations were made customer trust, in relation to a supplier, means a trust in re­ spect of which— (a) at least 90% of the income beneﬁciaries comprise per­ sons who are a class or classes identiﬁed by reference to any of— (i) the person’s connection to the lines of the sup­ plier: the person’s receipt of electricity from the sup­ plier: the person’s liability for payment for supply of electricity from the supplier: the person’s liability for payment for the connec­ tion to the lines of the supplier: the person’s liability for payment for line services supplied by the supplier; and (ii) (iii) (iv) (v) (b) at least 90% of its income distributions are paid to those beneﬁciaries ICP means a point of connection on a local or an embedded network at which a retailer supplies electricity to a consumer income distribution resolution date means the date that a supplier, or the trust or co­operative that owns a supplier, as the case may be, resolves to make an income distribution to beneﬁciaries.
(3) As soon as practicable after this subsection comes into force, the Minister must publish a notice in the Gazette stating the names of the suppliers that are consumer­owned as at that date.

The notice in subsection (3) is only for information purposes and has no legal effect.

Section 54D heading: inserted, on 14 October 2008, pursuant to section 4 of the Commerce Amendment Act 2008 (2008 No 70).
(4) 109 Part 4 s 54E Commerce Act 1986 Reprinted as at 1 April 2009 Section 54D(1): Amendment Act 2008 (2008 No 70).

inserted, on 1 April 2009, by section 4 of the Commerce Section 54D(2): Amendment Act 2008 (2008 No 70).

inserted, on 1 April 2009, by section 4 of the Commerce Section 54D(3): inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Section 54D(4): Amendment Act 2008 (2008 No 70).


inserted, on 1 April 2009, by section 4 of the Commerce Imposition of regulation under this Part Heading: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54E Electricity lines services declared to be regulated Electricity lines services are regulated under this Part.

Section 54E: inserted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
54F All electricity lines services are subject to information disclosure regulation All electricity lines services are subject to information disclos­ ure regulation under this Part.

Section 54F: inserted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
54G Certain electricity lines services are also subject to default/customised price­quality regulation (1) All electricity lines services (other than those supplied by Transpower) are subject to default/customised price­quality regulation under this Part unless they are exempt.

(2) All electricity lines services that are supplied by a supplier that is consumer­owned are exempt (unless an Order in Council has been made in respect of the service under section 54H).
Section 54G: inserted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
110 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 54H 54H How exempt status can be lost and default/customised (1) (2) (3) price­quality regulation can be applied to consumer­owned suppliers Electricity lines services that are supplied by a supplier that is consumer­owned cease to be exempt for the purpose of sec­ tion 54G (and therefore become subject to default/customised price­quality regulation under this Part) if the Governor­Gen­ eral, by Order in Council, declares that this section applies.
The Minister may make a recommendation only if the Minister is satisﬁed that either— (a) the Commission has advised the Minister that a supplier has ceased to be consumer­owned within the meaning of section 54D; or the Commission has recommended to the Minister that the purpose of this Part would be better met if price­ quality regulation were imposed on the supplier under this Part.
(b) The Commission may make a recommendation under subsec­ tion (2)(b) only following consideration of a petition made by 1 or more of the following: (a) 15% of the persons who are residential consumers of the supplier as at the date of the petition who are eligible to vote in elections for trustees of the customer trust or community trust, or for directors of the customer co­op­ erative: 20% of the persons who are residential consumers of the supplier as at that date who are not eligible to vote in elections for trustees of the customer trust or commu­ nity trust, or for directors of the customer co­operative: 25% of the persons who are non­residential consumers (either by number or by consumption of that class of consumer) of the supplier as at that date.
(b) (c) (4) (5) If exact ﬁgures are not available as to the number of persons in a class referred to in subsection (3), the Commission may rely on any estimate that the Commission considers to be a reasonable estimate.
Petition means a petition to the Commission seeking the ap­ plication of price­quality regulation to all or any of the elec­ 111 Part 4 s 54I Commerce Act 1986 Reprinted as at 1 April 2009 (6) tricity lines services of the relevant supplier, and that records the signatures of the signatories.

The Governor­General may, on the recommendation of the Minister, make an Order in Council in accordance with this section.
Section 54H: inserted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).

54I Commission must make section 52P determination (1) (2) (3) specifying how subpart applies The section 52P determinations that specify how information disclosure regulation applies to each supplier of electricity lines services must be made as soon as practicable after 1 April 2009.
The section 52P determinations that specify how default/cus­ tomised price­quality regulation applies to each supplier of electricity lines services that is subject to that form of regu­ lation as at 1 April 2009 are made as set out in section 54J.
The section 52P determinations that specify how default/cus­ tomised price­quality regulation applies to each supplier of electricity lines services that becomes subject to that form of regulation as a result of an Order in Council made under sec­ tion 54H must be made as soon as practicable after the order comes into force.

Section 54I: inserted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
54J Section 52P determinations setting out default price­quality paths applying from 1 April 2009 This section applies in respect of suppliers of electricity lines services that are subject to default/customised price­quality regulation on and after 1 April 2009.
(1) (2) On and after 1 April 2009, the thresholds for large electricity lines businesses that expire on 31 March 2009 are deemed to be section 52P determinations that— (a) apply those thresholds to each supplier as if the thresh­ olds were default price­quality paths; and state that the regulatory period for each supplier ends on 31 March 2010; and (b) 112 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 54K comply with sections 52P and 53O; and (c) (d) were notiﬁed in the Gazette under section 52P(7)(b) at least 4 months before 1 April 2009.
(3) However, a breach of a default price­quality path before the close of 31 March 2010 must be dealt with in accordance with section 54N and not under Part 6.

(4) Nothing in this section affects sections 54N and 54O.

Section 54J: inserted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
(2) (1) 54K Section 52P determinations setting out default price­quality paths applying from 1 April 2010 Before 1 April 2010, the Commission must reset the default price­quality paths for each supplier that apply on and after that date, using the process set out in section 53P.

The Commission may reset the default price­quality paths even if all or any of the relevant input methodologies have not been determined.
If an input methodology is published after 1 April 2010 and if, had that methodology applied at the time the default price­ quality paths were reset as required by subsection (1), it would have resulted in a materially different path being set, then the Commission may reset the default price­quality paths in ac­ cordance with section 53P and may apply claw­back, despite section 53ZB(1).
(3) (4) However, the Commission may not exercise its powers in sub­ section (3) later than 9 months after the date of publication of the input methodology.

(5) Nothing in this section affects sections 54N and 54O.

Section 54K: inserted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).

Transitional arrangements Heading: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
113 Part 4 s 54L Commerce Act 1986 Reprinted as at 1 April 2009 54L Administrative settlements made before 1 April 2009 (1) (2) (other than with Transpower) This section applies to every administrative settlement ac­ cepted by the Commission before 1 April 2009 in respect of a breach of a threshold other than an administrative settlement with Transpower.
The enactment of the Commerce Amendment Act 2008 does not limit or affect an administrative settlement to which this section applies, except as provided in this section.

(3) Any breach of the administrative settlement must be dealt with (4) in accordance with the terms of the settlement.
The expiry of the administrative settlement must be treated as if it were the end of a customised price­quality path, and sec­ tion 53X applies accordingly (unless the supplier concerned would not otherwise be subject to default/customised price­ quality regulation after the expiry of the settlement).

Section 54L: inserted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
54M Administrative settlements with Transpower made before (1) 1 April 2009 This section applies to any administrative settlement with Transpower that is accepted by the Commission before 1 April 2009 in respect of a breach of a threshold.

(3) (2) Any breach of an administrative settlement with Transpower may be dealt with under Part 6 as if it were a breach of a cus­ tomised price­quality path, despite anything in the terms of the settlement.
Before the expiry of the administrative settlement, the Com­ mission must recommend to the Minister that an Order in Council be made under section 52N declaring that either— (a) Transpower is subject to default/customised price­qual­ ity regulation under subpart 6; or Transpower is subject to individual price­quality path regulation under subpart 7.

(b) Subpart 2, except the provisions relating to inquiries, applies to the process for imposing that regulation and making the section 52P determination.
(4) 114 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 54N (5) (6) If an Order in Council declares that Transpower is subject to default/customised price­quality regulation, the section 52P determination must set the price­quality path that applies for the regulatory period commencing with the date on which the Order in Council comes into force, using the process under section 53P for resetting default price­quality paths.
The only requirements that may be included in a section 52P determination in respect of the quality standards of Transpower are requirements that give effect to quality stan­ dards set by the Electricity Commission.

Section 54M: inserted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
54N Breaches of thresholds and default price­quality paths (1) (2) (3) before 1 April 2010 This section applies to— (a) (b) (c) any breach of a threshold that occurred before the close of 31 March 2007; and any breach of a threshold that occurs on or after 1 April 2007 and before the close of 31 March 2009; and any breach of a default price­quality path that occurs on or after 1 April 2009 and before the close of 31 March 2010.
The Commission may not publish a notice of intention to de­ clare control under Part 4A,— (a) in respect of a breach referred to in subsection (1)(a), at any time after 1 October 2008; and in respect of a breach referred to in subsection (1)(b) or (c), at any time after the expiry of 12 months after the end of the ﬁnancial year in which the breach occurs.
(b) The Commission may, at any time before the expiry of 12 months after the date on which the Commission publishes a notice of intention to declare control under subsection (2) in respect of the breach,— (a) make a control declaration under Part 4A; or (b) enter into an administrative settlement in respect of the breach under Part 4A.
(4) The Commission may do anything under subsections (2) and (3) as if the Commerce Amendment Act 2008 had not been 115 Part 4 s 54O Commerce Act 1986 Reprinted as at 1 April 2009 enacted, except that the purpose in section 52A must be taken to be the purpose of Part 4A.

To avoid doubt, the Commission may, but need not, apply in­ put methodologies in acting under subsection (3).
(5) (6) Despite anything in Part 4A, any control imposed, or admin­ istrative settlement entered into, under Part 4A in accordance with subsection (3) is subject to the following: (a) the term of control, or of the settlement, must be not more than 5 years: the expiry of the term must be treated as if it were the expiry of a customised price­quality path, and section 53X applies accordingly (unless the supplier concerned would not otherwise be subject to default/customised price­quality regulation after the expiry of the term).
(b) Section 54N: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

(1) 54O Breaches of control imposed, or administrative settlements entered into, after 1 April 2009 If a supplier breaches control imposed, or an administrative settlement entered into, in accordance with section 54N(3), the breach may be dealt with under Part 6 as if it were a breach of a customised price­quality path, despite anything in the terms of the control or settlement.
To avoid doubt, this section applies whether or not the supplier is, after 1 April 2009, subject to default/customised price­qual­ ity regulation.

Section 54O: inserted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
(2) 54P Proposals for customised price­quality paths (1) A supplier of electricity lines services may not propose a cus­ tomised price­quality path until a section 52P determination setting out the requirements and criteria for proposals for cus­ tomised price­quality paths (as required by section 52T(1)(d)) is made.

(2) However, in accordance with section 53V(2), the Commission may apply claw­back when setting any customised price­qual­ ity path.
116 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 54S Section 54P: inserted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).

Energy efﬁciency Heading: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
54Q Energy efﬁciency The Commission must promote incentives, and must avoid im­ posing disincentives, for suppliers of electricity lines services to invest in energy efﬁciency and demand side management, and to reduce energy losses, when applying this Part in rela­ tion to electricity lines services.

Section 54Q: inserted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
Jurisdiction issues and interface with Electricity Commission and Electricity Act 1992 Heading: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
54R Transfer of jurisdiction relating to electricity lines services supplied by Transpower The Governor­General may, by Order in Council made on the recommendation of the Minister of Energy, transfer to the Electricity Commission the jurisdiction under this Part in re­ spect of all of the electricity lines services supplied by Trans­ power.

Section 54R: inserted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
54S Effect of transfer of jurisdiction (1) If an Order in Council is made under section 54R,— (a) the Electricity Commission, and not the Commerce Commission, has all the powers, duties, and functions under this Part in respect of the electricity lines services in respect of which the jurisdiction has been transferred; and the Electricity Commission must exercise or perform those powers, duties, and functions, and be treated in (b) 117 Part 4 s 54T Commerce Act 1986 Reprinted as at 1 April 2009 (c) that exercise or performance, as if it were an independ­ ent Crown entity; and the Electricity Commission must apply any input meth­ odologies determined by the Commerce Commission for services regulated under this subpart (except to the extent that the Electricity Commission considers that modiﬁcations are required to meet the particular cir­ cumstances of Transpower).
(2) Without limiting subsection (1)(b), if an Order in Council is made under section 54R, the Minister of Energy may not— (a) set objectives and outcomes under section 172ZK of the Electricity Act 1992 on any matter relating to the jurisdiction under this Part; or direct the Electricity Commission to give effect to or have regard to any government policy that relates to the jurisdiction under this Part; or direct the Electricity Commission to amend any provi­ sion that is included in its statement of intent that relates to the jurisdiction under this Part; or remove any member of the Electricity Commission for a reason related to the exercise of the jurisdiction under this Part.
(b) (c) (d) (3) The Order in Council under section 54R may contain any other provisions that are necessary or desirable to ensure that the Electricity Commission exercises or performs the powers, du­ ties, and functions under this Part, and is treated in that exer­ cise or performance, as if it were an independent Crown entity.

Section 54S: inserted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
54T Procedure before jurisdiction order can be made The Minister of Energy may make a recommendation for the purpose of section 54R only if— (a) he or she has consulted with Transpower, users of the national grid, and representatives of consumers; and he or she has consulted with the Electricity Commission and the Commerce Commission and has sought a rec­ ommendation from each of them; and (b) 118 Reprinted as at 1 April 2009 (c) Commerce Act 1986 Part 4 s 54V he or she is satisﬁed that the transfer of jurisdiction that would occur would result in— (i) the purpose of this Part being achieved more ef­ ﬁciently and effectively; and the purposes of the Electricity Act 1992, as it ap­ plies to Transpower, being achieved more efﬁ­ ciently and effectively; and lower compliance costs for Transpower.
(ii) (iii) Section 54T: inserted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).

54U Levies during transition in jurisdiction (1) The costs of the Commerce Commission during any period after any transfer of jurisdiction under this Part may continue to be met via levy regulations under section 53ZE.

The costs of the Electricity Commission in respect of jurisdic­ tion that is transferred to it must be met via levy regulations under the Electricity Act 1992.
Section 54U: inserted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
(2) 54V Impact of certain decisions made under Electricity Act (1) (2) 1992 The Electricity Commission must advise the Commerce Com­ mission as soon as practicable after making any recommen­ dation for an electricity governance regulation or rule under subpart 2 of Part 14 of the Electricity Act 1992, or after mak­ ing any decision under electricity governance regulations or rules, or after issuing any guidelines, that is or are likely to be relevant to the powers, duties, or functions of the Commerce Commission under this Part.
The Commerce Commission must take into account, before exercising or performing any of its powers, duties, or functions under this Part,— (a) any electricity governance regulation or rule, or deci­ sion made under them, that relates to or affects the quality standards or pricing methodologies applicable to Transpower: 119 Part 4 s 54W Commerce Act 1986 Reprinted as at 1 April 2009 (b) (c) (d) (e) any electricity governance regulation or rule, or deci­ sion made under them, that relates to or affects the pric­ ing methodologies applicable to any other line owner: any guidelines of which it receives advice under subsec­ tion (1) that are likely to be relevant to the exercise or performance of the powers, duties, or functions of the Commerce Commission under this Part: the levy payable by Transpower or any other line owner under section 172ZC of the Electricity Act 1992: the continuance of supply obligations imposed by sec­ tion 62 of the Electricity Act 1992.
(3) The Commerce Commission must, if asked by the Electricity Commission to do so, reconsider a section 52P determination and, to the extent that the Commerce Commission considers it necessary or desirable to do so, amend the determination, to take account of any matter referred to in subsection (2).

Section 54V: inserted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
Savings provisions Heading: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
54W Savings provision relating to existing information disclosure requirements Any information disclosure requirements published by the Commission under subpart 3 of Part 4A before 1 April 2009 continue to apply to each supplier of electricity lines services in respect of every ﬁnancial year that precedes the ﬁrst ﬁnan­ cial year to which a determination made by the Commission under section 54I(1) applies to that supplier.
Section 54W: inserted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
54X Savings provision for existing levy regulations for electricity lines businesses (1) Any regulations made pursuant to section 57ZK before the repeal of Part 4A continue to apply to each person who is a large line owner in respect of every ﬁnancial year that precedes 120 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 55A (2) 55 (1) the ﬁrst ﬁnancial year to which levy regulations made under section 53ZE apply to that supplier.
Subsection (1) applies as if— (a) references in those regulations to the Commission’s costs included references to the costs of exercising and performing the Commission’s powers, duties, and functions under this Part, and enforcing the obligations under this Part, in respect of those persons, and with all other necessary modiﬁcations; and terms used in subsection (1) have the same meaning as they do in those regulations.
(b) Section 54X: inserted, on 1 April 2009, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).

Subpart 10—Gas pipeline services Subpart 10: Amendment Act 2008 (2008 No 70).

inserted, on 14 October 2008, by section 4 of the Commerce Overview and interpretation Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
Overview of subpart This subpart provides— (a) that certain gas pipeline services are subject to informa­ tion disclosure regulation and price­quality regulation; and for the transition to the new regime provided for in this Part.

(b) (2) This section is only a guide.

Section 55: substituted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Part 4 (comprising sections 52 to 57C) was substituted for the previous Part 4 (comprising sections 52 to 57), as from 26 May 2001, by section 12 Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceed­ ings barred or commenced before 26 May 2001.
55A Meaning of gas pipeline services (1) In this subpart, unless the context otherwise requires, gas pipeline services means the conveyance of natural gas by 121 Part 4 s 55A Commerce Act 1986 Reprinted as at 1 April 2009 pipeline, including the assumption of responsibility for losses of natural gas.
(a) (b) (2) However, none of the following are gas pipeline services: conveying natural gas to a gas processing facility: conveying natural gas if the total amount of gas con­ veyed to consumers by the supplier is less than 75 000 gigajoules per annum: conveying natural gas by a pipeline that is listed in the second column of Schedule 6.

(c) The gas conveyed, when measured in relation to a supplier in­ cludes, for the purposes of subsection (2)(b), the gas conveyed by any associate of the supplier.
In this section, unless the context otherwise requires,— associate has the same meaning as in section 12 of the Elec­ tricity Industry Reform Act 1998 consumer has the same meaning as in section 2(1) of the Gas Act 1992 container has the same meaning as in section 2(1) of the Gas Act 1992 gas refueller has the same meaning as in section 2(1) of the Gas Act 1992 pipeline— (a) means everything used, or designed or intended for use, (whether above or below ground) in or in connection with the conveyance of natural gas between— (i) the boundary of the gas ﬁeld or gas processing facility to the point of supply to a consumer or gas refueller; or the outlet of the container in which gas is stored to the point of supply to a consumer or gas refu­ eller; but excludes meters.
(b) The Governor­General may, by Order in Council made on the recommendation of the Minister, amend Schedule 6 by— (a) (b) (c) adding any pipeline: deleting any pipeline: changing the description of any pipeline or its owner.
(ii) (3) (4) (5) 122 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 55D (6) The Minister may make a recommendation for the purpose of subsection (5) only if the Minister is satisﬁed that— (a) the Commission has made a recommendation to the same effect; and in the case of a recommendation to add a pipeline, the gas pipeline services are supplied in a market where the owner of the pipeline does not have a substantial degree of market power; and in the case of a recommendation to delete a pipeline, the gas pipeline services are supplied in a market where the owner of the pipeline has a substantial degree of market power; and the Commission has consulted (without necessarily holding an inquiry) with interested parties.
(b) (c) (d) Section 55A: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Imposition of regulation under this Part Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).

55B Gas pipeline services declared to be regulated Gas pipeline services are regulated under this Part.

Section 55B: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
55C All gas pipeline services are subject to information disclosure regulation Gas pipeline services are subject to information disclosure regulation under this Part.

Section 55C: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

55D All gas pipeline services are subject to price­quality regulation Gas pipeline services are subject to default/customised price­ quality regulation under this Part on and after 1 July 2010.
Section 55D: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

123 Part 4 s 55E Commerce Act 1986 Reprinted as at 1 April 2009 55E Commission must make section 52P determination (1) (2) (3) specifying how subpart applies The section 52P determinations that specify how information disclosure regulation applies to each supplier of gas pipeline services must be made as soon as practicable after this subpart comes into force.
The section 52P determinations that specify how default/cus­ tomised price­quality regulation applies to each supplier of gas pipeline services must be made as soon as practicable after 1 July 2010, in the manner set out in section 55F.
The section 52P determinations that specify how default/cus­ tomised price­quality regulation applies to each supplier of gas pipeline services that become subject to that form of regula­ tion as a result of an Order in Council made under section 55A(5)(a) must be made as soon as practicable after the order comes into force.

Section 55E: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
55F Section 52P determinations setting out ﬁrst default (1) price­quality paths The Commission must use the processes set out in section 53P in making the ﬁrst section 52P determinations that set out how default price­quality regulation applies to suppliers of gas pipeline services as if 30 June 2010 were the end of the previ­ ous regulatory period.
(2) However, if a supplier has increased its weighted average prices by more than the movement, or forecast movement, in the all groups index number of the New Zealand Consumer Price Index in the period beginning 1 January 2008 and ending with the date that the determination is made, the Commission may apply claw­back to the extent of requiring the supplier to lower its prices in order to compensate consumers for some or all of any over­recovery of revenues that occurred during that period.
The Commission may set a default price­quality path in re­ spect of suppliers of gas pipeline services even if all or any of the relevant input methodologies have not been determined.
(3) 124 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 55G (4) If an input methodology is published after a section 52P de­ termination referred to in subsection (1) is made, and if, had that methodology applied at the time the default price­qual­ ity paths were set as required by subsection (1), it would have resulted in a materially different path being set, then the Com­ mission may reset the default price­quality paths and may ap­ ply claw­back, despite section 53ZB(1).
(5) However, the Commission may not exercise its powers in sub­ section (4) later than 9 months after the date of publication of the input methodology.

Section 55F: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Services controlled by virtue of Commerce (Control of Natural Gas Services) Order 2005 Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
55G Existing order, authorisations, and undertakings continue (1) (2) (3) to apply until 1 July 2012 (or earlier expiry) This section provides how price­quality regulation under this Part applies to services that are controlled by virtue of the Commerce (Control of Natural Gas Services) Order 2005 (the Order) The Order continues in force, despite the repeal of Part 4 (as it was before its repeal by the Commerce Amendment Act 2008), until the date on which the Order expires or is revoked (the expiry date).
The enactment of the Commerce Amendment Act 2008 does not limit or affect, before the expiry date, any of the following in respect of the gas pipeline services that are controlled by virtue of the Order: (a) any authorisation made (including the ability to amend or revoke an authorisation), or any undertaking obtained or accepted, under Part 5 before 1 April 2009; or the power of the Commission to obtain or accept any further undertakings under Part 5; or any action that may be commenced or continued in re­ spect of a breach of any authorisation or undertaking.
(b) (c) 125 Part 4 s 55H Commerce Act 1986 Reprinted as at 1 April 2009 (4) To avoid doubt, subsection (3) applies as if the provisions of Parts 4 to 6 had not been amended or repealed by the Com­ merce Amendment Act 2008.

(5) However, any breach of the Order after 1 April 2009 may be dealt with under Part 6 as if it were a breach of a customised price­quality path.

Section 55G: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
55H How price­quality regulation under this Part applies after 1 July 2012 (or earlier expiry) This section provides how price­quality regulation under this Part applies to a gas pipeline service after it ceases to be con­ trolled by virtue of the Commerce (Control of Natural Gas Ser­ vices) Order 2005 (the Order).

The expiry of the Order must be treated as if it were the expiry of a customised price­quality path, and section 53X applies accordingly.
In this section, the date on which the Order expires is— the expiry date referred to in section 55G; or (a) if an undertaking is obtained or accepted from a supplier (b) in respect of a service that expires on an earlier date, that earlier date, provided that the Order ceases to apply to that service on or before that date (by revocation of the Order or otherwise).

Section 55H: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Interface with Gas Act 1992 Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
Impact of certain decisions made under Gas Act 1992 The recommending body must advise the Commerce Commis­ sion as soon as practicable after making any recommendation for a gas governance regulation or rule under Part 4A of the Gas Act 1992, or after making any decision under gas govern­ ance regulations or rules, or after issuing any guidelines, that (1) (2) (3) 55I (1) 126 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 55J (2) (3) (4) is or are likely to be relevant to the powers of the Commerce Commission under this Part.
The Commission must take into account, before exercising any of its powers under this Part,— (a) any gas governance regulation or rule under Part 4A of the Gas Act 1992,, or decision under those gas govern­ ance regulations or rules, that relates to or affects the quality standards or pricing methodologies applicable to a pipeline owner: any guidelines issued by the recommending body of which it is advised under subsection (1) that are likely to be relevant to the powers of the Commerce Commis­ sion under this Part: the levy payable by any pipeline owner under the Gas Act 1992.
(b) (c) The Commission must, if asked by the recommending body to do so, reconsider any section 52P determination and, to the extent that the Commission considers it necessary or desirable to do so, amend the determination, to take account of any mat­ ter referred to in subsection (2).

In this section, recommending body has the same meaning as in section 43D of the Gas Act 1992.

Section 55I: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Savings provisions Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).

55J Savings provision until Commission publishes information (1) disclosure requirements The Gas (Information Disclosure) Regulations 1997 continue to apply to each supplier of gas pipeline services in respect of every ﬁnancial year that precedes the ﬁrst ﬁnancial year to which a determination made by the Commission referred to in section 55E(1) applies to that supplier.
(2) After that, no regulations made under section 55 of the Gas Act 1992 apply to the supplier of gas pipeline services.

127 Part 4 s 55K Commerce Act 1986 Reprinted as at 1 April 2009 Section 55J: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
55K Savings provision for existing levy regulations for services controlled under Commerce (Control of Natural Gas Services) Order 2005 (1) Any regulations made pursuant to section 74 before the repeal of that section continue to apply to each person that is a sup­ plier of controlled services under the Commerce (Control of Natural Gas Services) Order 2005 in respect of every ﬁnancial year that precedes the ﬁrst ﬁnancial year to which levy regu­ lations made under section 53ZE apply to that supplier.
Subsection (1) applies as if— (a) (2) references in those regulations to the Commission’s costs include references to the costs of exercising the Commission’s powers and performing its duties under this Part, and enforcing the obligations under this Part, in respect of those persons, and with all other necessary modiﬁcations; and terms used in subsection (1) have the same meaning as they do in those regulations.
(b) Section 55K: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Subpart 11—Airport services inserted, on 14 October 2008, by section 4 of the Commerce Subpart 11: Amendment Act 2008 (2008 No 70).

Overview and interpretation Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
Overview of subpart This subpart provides— (a) that speciﬁed airport services (at Auckland, Welling­ ton, and Christchurch airports) are subject to informa­ tion disclosure under this Part; and for the transition to the new regime provided for in this Part; and (b) 56 (1) 128 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 56A (c) for a review of the new regime as soon as any new price is set in 2012 for speciﬁed airport services.

(2) This section is only a guide.


Section 56: substituted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Part 4 (comprising sections 52 to 57C) was substituted for the previous Part 4 (comprising sections 52 to 57), as from 26 May 2001, by section 12 Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceed­ ings barred or commenced before 26 May 2001.
56A Meaning of speciﬁed airport services (1) In this Part, unless the context otherwise requires, speciﬁed airport services means all of the services supplied by the com­ panies referred to in subsection (2) in markets directly related to the following activities (whether for international and do­ mestic ﬂights): (a) (b) (c) (d) aircraft and freight activities: airﬁeld activities: speciﬁed passenger terminal activities: any other services that are determined by the Governor­ General, by Order in Council made on the recommenda­ tion of the Minister under subsection (4), to be speciﬁed airport services for the purposes of this Part.
(2) (3) The companies are— (a) (b) the company (as deﬁned in section 2 of the Auckland Airport Act 1987) that operates Auckland International Airport or any subsidiary of, or successor to, that com­ pany that operates all or part of the airport: the company (as deﬁned in section 2 of the Welling­ ton Airport Act 1990) that operates Wellington Inter­ national Airport or any subsidiary of, or successor to, that company that operates all or part of the airport: the airport company (as deﬁned in section 2 of the Air­ port Authorities Act 1966) that operates Christchurch International Airport or any subsidiary of, or successor to, that company that operates all or part of the airport.
Terms used in subsection (1)(a) to (c) have the same meanings as in section 2 of the Airport Authorities Act 1966.
(c) 129 Part 4 s 56B Commerce Act 1986 Reprinted as at 1 April 2009 (4) The Minister may recommend that an Order in Council be made under subsection (1)(d) only if the Minister is satisﬁed that— (a) the Commission has made a recommendation to the same effect; and the services are supplied in a market where any or all of the companies referred to in subsection (2) have a substantial degree of market power; and the Commission has consulted (without necessarily holding an inquiry) with interested parties.
(b) (c) Section 56A: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Imposition of regulation under this Part Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).

56B Speciﬁed airport services declared to be regulated Speciﬁed airport services are regulated under this Part.

Section 56B: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
56C Speciﬁed airport services are subject to information disclosure regulation Speciﬁed airport services are subject to information disclosure regulation under this Part.

Section 56C: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
56D Duty to also disclose to Secretary of Transport Each supplier of speciﬁed airport services must supply to the Secretary of Transport a copy of any information disclosed under this Part, as soon as practicable after so disclosing it.

Section 56D: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
130 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4 s 56G 56E Commission must make determination specifying how subpart applies The section 52P determinations that specify how information disclosure regulation applies to each supplier of speciﬁed air­ port services must be made no later than 1 July 2010 (or, if the deadline for determining input methodologies is extended under section 52U(2), no later than the day after the date to which that deadline is extended).
Section 56E: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

How information disclosure regulation applies Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amend­ ment Act 2008 (2008 No 70).
56F Transitional provision until Commission publishes (1) information disclosure requirements The Airport Authorities (Airport Companies Information Dis­ closure) Regulations 1999 continue to apply to each supplier of speciﬁed airport services in respect of every ﬁnancial year that precedes the ﬁrst ﬁnancial year to which a determination made by the Commission under section 56E applies to that supplier.
(2) After that, no regulations made under section 9A of the Airport (3) (4) Authorities Act 1966 apply to that supplier.

Each supplier of speciﬁed airport services must supply to the Commission a copy of any information disclosed under those regulations, as soon as practicable after so disclosing.

The Commission may monitor and analyse any information supplied to it under this section.

Section 56F: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
56G Transitional provision requiring review after new prices set (1) As soon as practicable after any new price for a speciﬁed air­ port service is set in or after 2012 by a supplier of the service, the Commission must— 131 Part 4 s 57 Commerce Act 1986 Reprinted as at 1 April 2009 (a) (b) (c) review the information that has been disclosed by sup­ pliers of speciﬁed airport services under subpart 4; and consult (without necessarily holding an inquiry) with interested parties; and report to the Ministers of Commerce and Transport as to how effectively information disclosure regulation under this Part is promoting the purpose in section 52A in respect of the speciﬁed airport services.
To avoid doubt, subsection (1) applies regardless of whether or not any new price for a speciﬁed airport service is set before 2012.

Section 56G: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Commission process [Repealed] Section 57: repealed, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
(2) 57 57A Technical provisions relating to declaration of control [Repealed] Section 57A: repealed, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

57B Records to be kept for control purposes [Repealed] Section 57B: repealed, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
57C Other Acts relating to price control not affected [Repealed] Section 57C: repealed, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

57CA Impact of certain decisions made under Gas Act 1992 [Repealed] Section 57CA: repealed, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
132 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4A s 57DC Part 4A Provisions applicable to electricity industry [Repealed] Part 4A: repealed, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).

57D Interpretation [Repealed] Section 57D: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).
57DAA Meaning of electricity lines business [Repealed] Section 57DAA: repealed, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).

57DAAB Meaning of electricity supply business [Repealed] Section 57DAAB: repealed, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).

57DA Body that exercises jurisdiction under this Part [Repealed] Section 57DA: repealed, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57DB Transfer of jurisdiction in respect of Transpower [Repealed] Section 57DB: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).

57DC Transfer of jurisdiction relating to other large electricity lines businesses [Repealed] Section 57DC: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).
133 Part 4A s 57DD Commerce Act 1986 Reprinted as at 1 April 2009 57DD Procedure before jurisdiction order can be made [Repealed] Section 57DD: repealed, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).

57DE Levies during transition in jurisdiction [Repealed] Section 57DE: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).
57DF Ministerial powers [Repealed] Section 57DF: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).

Subpart 1—Controlled goods or services [Repealed] Subpart 1: repealed, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).

57E Purpose [Repealed] Section 57E: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).
57F Commission, not Minister, may declare that goods or services supplied by large electricity lines businesses are controlled [Repealed] Section 57F: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).

57G Thresholds for declaration of control [Repealed] Section 57G: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).
134 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4A s 57GG 57GA Incorporation by reference of material in thresholds [Repealed] Section 57GA: repealed, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).

57GB Effect of amendments to, or replacement of, material incorporated by reference in thresholds [Repealed] Section 57GB: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).
57GC Amendments to, or replacement of, material incorporated by reference to be of same general character as original material [Repealed] Section 57GC: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).

57GD Proof of material incorporated by reference [Repealed] Section 57GD: repealed, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57GE Effect of expiry of material incorporated by reference [Repealed] Section 57GE: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).

57GF Requirement to consult [Repealed] Section 57GF: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).

57GG Access to material incorporated by reference [Repealed] Section 57GG: repealed, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
135 Part 4A s 57H Commerce Act 1986 Reprinted as at 1 April 2009 57H Process for making decisions on declaration of control [Repealed] Section 57H: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).

57I Process before declaration made [Repealed] Section 57I: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).
57J Effect of declaration of control [Repealed] Section 57J: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).

57K Priorities [Repealed] Section 57K: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).

57L Maximum of 5 years for duration of declaration [Repealed] Section 57L: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).
57M Authorisations and undertakings [Repealed] Section 57M: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).

57MA Impact of certain decisions made under Electricity Act 1992 [Repealed] Section 57MA: repealed, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).

57N Commission may lift control [Repealed] Section 57N: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).
136 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4A s 57S Subpart 2—Transpower’s pricing methodology [Repealed] Subpart 2 (comprising sections 57O to 57S) was repealed, as from 18 October 2004, by section 10(1) Commerce Amendment Act (No 2) 2004 (2004 No 82).

57O Commission may be required to authorise Transpower’s pricing methodology [Repealed] Part 4A (comprising sections 57D to 57ZK) was inserted, as from 8 August 2001, by section 3 Commerce Amendment Act (No 2) 2001 (2001 No 41).
Subpart 2 (comprising sections 57O to 57S) was repealed, as from 18 October 2004, by section 10(1) Commerce Amendment Act (No 2) 2004 (2004 No 82).

57P Authorisations in respect of Transpower’s pricing methodology [Repealed] Part 4A (comprising sections 57D to 57ZK) was inserted, as from 8 August 2001, by section 3 Commerce Amendment Act (No 2) 2001 (2001 No 41).
Subpart 2 (comprising sections 57O to 57S) was repealed, as from 18 October 2004, by section 10(1) Commerce Amendment Act (No 2) 2004 (2004 No 82).

57Q Authorisations and undertakings [Repealed] Part 4A (comprising sections 57D to 57ZK) was inserted, as from 8 August 2001, by section 3 Commerce Amendment Act (No 2) 2001 (2001 No 41).

Subpart 2 (comprising sections 57O to 57S) was repealed, as from 18 October 2004, by section 10(1) Commerce Amendment Act (No 2) 2004 (2004 No 82).
57R Enforcement of authorisations [Repealed] Part 4A (comprising sections 57D to 57ZK) was inserted, as from 8 August 2001, by section 3 Commerce Amendment Act (No 2) 2001 (2001 No 41).

Subpart 2 (comprising sections 57O to 57S) was repealed, as from 18 October 2004, by section 10(1) Commerce Amendment Act (No 2) 2004 (2004 No 82).
57S Revocation of authorisations [Repealed] Part 4A (comprising sections 57D to 57ZK) was inserted, as from 8 August 2001, by section 3 Commerce Amendment Act (No 2) 2001 (2001 No 41).

137 Part 4A s 57T Commerce Act 1986 Reprinted as at 1 April 2009 Subpart 2 (comprising sections 57O to 57S) was repealed, as from 18 October 2004, by section 10(1) Commerce Amendment Act (No 2) 2004 (2004 No 82).
Subpart 3—Information disclosure [Repealed] Subpart 3: repealed, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).

57T Information disclosure [Repealed] Section 57T: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).

57U Information to be supplied to Commerce Commission [Repealed] Section 57U: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).
57V Commerce Commission to publish summaries [Repealed] Section 57V: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).

57W Reasonable charge may be imposed for providing copies of statements [Repealed] Section 57W: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).

Subpart 4—Asset valuations [Repealed] Subpart 4: repealed, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
Recalibration of asset values of large electricity line owners [Repealed] The heading above section 57X was repealed, as from 18 October 2004, by section 11(1) Commerce Amendment Act (No 2) 2004 (2004 No 82).

138 Reprinted as at 1 April 2009 Commerce Act 1986 Part 4A s 57ZC 57X Purpose of recalibrations [Repealed] Part 4A (comprising sections 57D to 57ZK) was inserted, as from 8 August 2001, by section 3 Commerce Amendment Act (No 2) 2001 (2001 No 41).
Section 57X was repealed, as from 18 October 2004, by section 11(1) Com­ merce Amendment Act (No 2) 2004 (2004 No 82).

57Y Interpretation [Repealed] Part 4A (comprising sections 57D to 57ZK) was inserted, as from 8 August 2001, by section 3 Commerce Amendment Act (No 2) 2001 (2001 No 41).

Section 57Y was repealed, as from 18 October 2004, by section 11(1) Com­ merce Amendment Act (No 2) 2004 (2004 No 82).
57Z Large electricity line owners must supply valuation to Commerce Commission [Repealed] Part 4A (comprising sections 57D to 57ZK) was inserted, as from 8 August 2001, by section 3 Commerce Amendment Act (No 2) 2001 (2001 No 41).

Section 57Z was repealed, as from 18 October 2004, by section 11(1) Commerce Amendment Act (No 2) 2004 (2004 No 82).
57ZA Comprehensive audit of asset values of large electricity line owners [Repealed] Part 4A (comprising sections 57D to 57ZK) was inserted, as from 8 August 2001, by section 3 Commerce Amendment Act (No 2) 2001 (2001 No 41).

Section 57ZA was repealed, as from 18 October 2004, by section 11(1) Com­ merce Amendment Act (No 2) 2004 (2004 No 82).
57ZB Procedure after audit of asset values carried out [Repealed] Part 4A (comprising sections 57D to 57ZK) was inserted, as from 8 August 2001, by section 3 Commerce Amendment Act (No 2) 2001 (2001 No 41).

Section 57ZB was repealed, as from 18 October 2004, by section 11(1) Com­ merce Amendment Act (No 2) 2004 (2004 No 82).
57ZC Outcome of audit of asset values [Repealed] Part 4A (comprising sections 57D to 57ZK) was inserted, as from 8 August 2001, by section 3 Commerce Amendment Act (No 2) 2001 (2001 No 41).

139 Part 4A s 57ZD Commerce Act 1986 Reprinted as at 1 April 2009 Section 57ZC was repealed, as from 18 October 2004, by section 11(1) Com­ merce Amendment Act (No 2) 2004 (2004 No 82).
Review of valuation methodologies [Repealed] Heading: repealed, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).

57ZD Review of valuation methodologies [Repealed] Section 57ZD: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).

57ZE Process when carrying out review of valuation methodologies [Repealed] Section 57ZE: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).
Subpart 5—General provisions [Repealed] Subpart 5: repealed, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).

57ZF Powers of Commission [Repealed] Section 57ZF: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).

57ZG Powers of entry and inspection [Repealed] Section 57ZG: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).
57ZH Authorised persons to prove identity [Repealed] Section 57ZH: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).

140 Reprinted as at 1 April 2009 Commerce Act 1986 Part 5 s 58 57ZI Offence to obstruct authorised persons [Repealed] Section 57ZI: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).
57ZJ Other offences [Repealed] Section 57ZJ: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).

57ZK Levy of electricity lines businesses [Repealed] Section 57ZK: repealed, on 1 April 2009, by section 5 of the Commerce Amend­ ment Act 2008 (2008 No 70).
Part 5 Authorisations and clearances Restrictive trade practices 58 Commission may grant authorisation for restrictive trade practices (1) A person who wishes to enter into a contract or arrangement, or arrive at an understanding, to which that person considers section 27 of this Act would apply, or might apply, may apply to the Commission for an authorisation to do so and the Com­ mission may grant an authorisation for that person to enter into the contract or arrangement, or arrive at the understanding.
(2) A person who wishes to give effect to a provision of a contract or arrangement or understanding to which that person consid­ ers section 27 of this Act would apply, or might apply, may apply to the Commission for an authorisation to do so, and the Commission may grant an authorisation for that person to give effect to the provision of the contract or arrangement or under­ standing.
(3) A person who wishes to require the giving of, or to give, a covenant to which that person considers section 28 of this Act would apply, or might apply, may apply to the Commission for an authorisation to do so, and the Commission may grant 141 Part 5 s 58A Commerce Act 1986 Reprinted as at 1 April 2009 an authorisation for that person to require the giving of, or to give, the covenant.
(4) A person who wishes to carry out or enforce a covenant to which that person considers section 28 of this Act would apply, or might apply, may apply to the Commission for an authorisa­ tion to do so, and the Commission may grant an authorisation for that person to carry out or enforce the covenant.
(5) A person who wishes to enter into a contract or arrangement, or arrive at an understanding to which that person considers section 29 of this Act would apply, or might apply, may apply to the Commission for an authorisation for that person to enter into the contract or arrangement or arrive at the understanding.
(6) A person who wishes to give effect to an exclusionary provi­ sion of a contract or arrangement or understanding to which that person considers section 29 of this Act would apply, or might apply, may apply to the Commission to do so, and the Commission may grant an authorisation for that person to give effect to the exclusionary provision of the contract or arrange­ ment or understanding.
(7) A person who wishes to engage in the practice of resale price maintenance to which that person considers section 37 of this Act would apply, or might apply, may apply to the Commis­ sion for an authorisation to do so, and the Commission may grant an authorisation for that person to engage in the prac­ tice.
(8) A person who wishes to do an act to which that person con­ siders section 38 of this Act would apply, or might apply, may apply to the Commission for an authorisation to do so, and the Commission may grant an authorisation for that person to do that act.

Section 58 was substituted, and sections 58A and 58B inserted, as from 1 July 1990, by section 19 Commerce Amendment Act 1990 (1990 No 41).
58A Effect of authorisation (1) While an authorisation under subsection (1) or subsection (5) of section 58 of this Act remains in force, as the case may be, nothing in section 27 or section 29 of this Act, as the case may be, shall prevent the applicant from— 142 Reprinted as at 1 April 2009 Commerce Act 1986 Part 5 s 58A (a) (b) (c) Entering into, or in accordance with the authorisation, giving effect to or enforcing any provision of the con­ tract to which the authorisation relates; or Entering into, or in accordance with the authorisation, giving effect to the arrangement to which the authorisa­ tion relates; or Arriving at, or in accordance with the authorisation, giv­ ing effect to the understanding to which the authorisa­ tion relates.
(2) While an authorisation under subsection (2) or subsection (6) of section 58 of this Act remains in force, as the case may be, nothing in section 27 or section 29 of this Act, as the case may be, shall prevent the applicant from— (a) In accordance with the authorisation, giving effect to or enforcing the contract to which the authorisation re­ lates; or In accordance with the authorisation, giving effect to the arrangement or understanding.
(b) (3) While an authorisation under subsection (3) of section 58 of this section remains in force, nothing in section 28 of this Act shall prevent the applicant from— (a) Requiring the giving of, or giving, the covenant to which the authorisation relates; or Carrying out or enforcing the terms of the covenant to which the authorisation relates in accordance with the authorisation.
(b) (4) While an authorisation under subsection (4) of section 58 of this Act remains in force, nothing in section 28 of this Act shall prevent the applicant from carrying out or enforcing the terms of the covenant to which the authorisation relates in ac­ cordance with the authorisation.
(5) While an authorisation under subsection (7) of section 58 of this Act remains in force, nothing in section 37 of this Act shall prevent the applicant from engaging in the practice to which the authorisation relates in accordance with the authorisation.

(6) While an authorisation under subsection (8) of section 58 of this Act remains in force, nothing in section 38 of this Act shall prevent the applicant from doing the act to which the authorisation relates in accordance with the authorisation.
143 Part 5 s 58B Commerce Act 1986 Reprinted as at 1 April 2009 Section 58 was substituted, and sections 58A and 58B inserted, as from 1 July 1990, by section 19 Commerce Amendment Act 1990 (1990 No 41).
58B Additional provisions relating to authorisations (1) Every authorisation granted by the Commission to a person under section 58 of this Act to— (a) Enter into a contract or arrangement or arrive at an understanding; or (b) Give effect to a provision of a contract, arrangement, or understanding; or Require the giving of, or give, a covenant; or (c) Carry out or enforce the terms of a covenant; or (d) Engage in the practice of resale price maintenance; or (e) (f) Do any act referred to in section 38 of this Act,— shall have effect as if it were also an authorisation in the same terms to every other person named or referred to in the appli­ cation for the authorisation as a party to the contract, arrange­ ment, or understanding, or the practice or act, or as a person who is or would be bound by, or entitled to the beneﬁt of, the covenant, as the case may be.
(2) An authorisation granted to a person under section 58 of this Act may be expressed to apply to or in relation to another per­ son who,— (a) In the case of an authorisation to enter into a contract or arrangement or arrive at an understanding, becomes a party to the proposed contract or arrangement at a time after it is entered into or becomes a party to the proposed understanding at a time after it is arrived at: In the case of an authorisation to give effect to a provi­ sion of a contract, arrangement, or understanding, be­ comes a party to the contract, arrangement, or under­ standing at a time after the authorisation is granted: In the case of an authorisation to require the giving of, or to give, a covenant, becomes bound by, or entitled to the beneﬁt of, the covenant at a time after the covenant is given: In the case of an authorisation to carry out or enforce the terms of a covenant, becomes bound by, or entitled (b) (c) (d) 144 Reprinted as at 1 April 2009 Commerce Act 1986 Part 5 s 59A to the beneﬁt of, the covenant at a time after the author­ isation is granted.
Section 58 was substituted, and sections 58A and 58B inserted, as from 1 July 1990, by section 19 Commerce Amendment Act 1990 (1990 No 41).
59 Contracts or covenants subject to authorisation not prohibited under certain conditions (1) Despite anything in this Act, but subject to section 59B,— (a) (b) a contract to which section 27 or section 29 applies may be entered into if the requirements of subsection (2) are complied with: a covenant to which section 28 applies may be required to be given, or may be given, if the requirements of subsection (2) are complied with.
(2) For the purposes of subsection (1), the requirements that must be met are,— (a) in the case of a contract to which section 27 or sec­ tion 29 applies, that the contract is subject to a condi­ tion that the provision, or exclusionary provision, as the case may be, does not come into force unless and until authorisation is granted to give effect to the provision, or exclusionary provision and that application must be made for that authorisation within 15 working days af­ ter the contract is entered into: in the case of a covenant to which section 28 applies, that the covenant is subject to the condition that it does not have effect unless and until authorisation is granted to give effect to it and that application must be made for that authorisation within 15 working days after the covenant is made.
(b) The original subsection (1)(b) was substituted, and subsection (1)(c) and (1)(d) were inserted, as from 1 July 1990, by section 20 Commerce Amendment Act 1990 (1990 No 41).

Section 59 was substituted, and sections 59A and 59B were inserted, as from 26 May 2001, by section 13 Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
59A When Commission may grant authorisation (1) The Commission may grant an authorisation to a person— 145 Part 5 s 59A Commerce Act 1986 Reprinted as at 1 April 2009 (a) (b) (c) (d) to enter into a contract or arrangement, or to arrive at an understanding, even though the contract or arrangement has been entered into, or the understanding has been ar­ rived at, before the Commission makes a determination in respect of the application for that authorisation; or to give effect to a provision of a contract or arrange­ ment entered into, or an understanding arrived at, even though the applicant has already given, or is already giving, effect to the provision before the Commission makes a determination in respect of the application for that authorisation; or to require the giving of, or to give, a covenant even though the covenant has been given before the Commis­ sion makes a determination in respect of the application for that authorisation; or to do an act or engage in conduct referred to in section 37 or section 38 even though the applicant has already done the act or is already engaging in the conduct before the Commission makes a determination in respect of the application for that authorisation.
Subject to subsection (3), all of the parties to the contract, ar­ rangement, or understanding must, unless and until authorisa­ tion is granted, discontinue— (a) giving effect to the provision of the contract, arrange­ ment, or understanding: engaging in conduct referred to in section 37 or section 38.
(b) The parties to the contract, arrangement, or understanding may do any of the things set out in subsection (2) as long as any of the parties establishes to the satisfaction of the Commis­ sion that discontinuing any of those things would, or would be likely to, result in exceptional hardship to any of the parties.

Section 59 was substituted, and sections 59A and 59B were inserted, as from 26 May 2001, by section 13 Commerce Amendment Act 2001 (2001 No 32).
See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

(2) (3) 146 Reprinted as at 1 April 2009 Commerce Act 1986 Part 5 s 60 59B Contraventions not prevented by granting of authorisation under section 59 or section 59A Nothing in section 59 or section 59A prevents conduct that occurred before an authorisation was granted in respect of it and that would otherwise have constituted a contravention of this Act from continuing to constitute a contravention.
Section 59 was substituted, and sections 59A and 59B were inserted, as from 26 May 2001, by section 13 Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
60 (1) Procedure for applications for authorisation of restrictive trade practices Every application for an authorisation under section 58 of this Act shall be made in the prescribed form, shall contain such particulars as may be speciﬁed in the form and shall be accom­ panied by payment of such fee as may be prescribed.
(2) On receipt of an application that complies with subsection (1) of this section, the Commission shall forthwith— (a) Record the application in the register to be kept by the Commission for the purpose: (b) Give written notice of the date of registration to the per­ (c) son by or on whose behalf the application was made: Give notice of the application to any other person who, in the Commission’s opinion, is likely to have an inter­ est in the application: (d) Give public notice of the application in such manner as the Commission thinks ﬁt.
(3) Any person who has an interest in any application in respect of which a notice is given under subsection (2)(d) of this section may give written notice to the Commission of that person’s interest and the reason therefor.
(4) On receipt of an application that does not comply with subsec­ tion (1) of this section, the Commission may, at its discretion, either— (a) Accept the application and take the steps referred to in subsection (2) of this section in respect of that applica­ tion; or 147 Part 5 s 61 Commerce Act 1986 Reprinted as at 1 April 2009 (b) (c) Return the application to the person by or on whose behalf it was made; or Decline to register the application until it complies with subsection (1) of this section.
(6) (5) Where the Commission declines to register an application under subsection (4)(c) of this section, it shall forthwith notify the person by or on whose behalf the application was made.
The person making the application under subsection (1) of this section, and any person on whose behalf it was made, and any person to whom the application relates, shall from time to time produce, or, as the case may be, furnish to the Commission, within such time as it may specify, such further documents or information in relation to the application as may be required by the Commission for the purpose of enabling it to exercise its functions under this part of this Act.
(7) Notwithstanding anything in subsection (2) or subsection (4) of this section, where the Commission is of the opinion that the matters to which an application relates are, for reasons other than arising from the application of any provision of this Act, unlikely to be proceeded with, the Commission may, in its discretion, return the application to the person by or on whose behalf the application was made.
(8) Any person who has made an application to the Commission for an authorisation may, at any time, by notice in writing to the Commission, withdraw the application.
Compare: 1975 No 113 s 70; 1983 No 144 s 26; Trade Practices Act 1974 (Aust), s 89(1), (2) 61 (1) Determination of applications for authorisation of restrictive trade practices The Commission shall, in respect of an application for an au­ thorisation under section 58 of this Act, make a determination in writing— (a) (b) Declining the application.
Granting such authorisation as it considers appropriate: (2) Any authorisation granted pursuant to section 58 of this Act may be granted subject to such conditions not inconsistent with this Act and for such period as the Commission thinks ﬁt.

148 Reprinted as at 1 April 2009 Commerce Act 1986 Part 5 s 61 (3) (4) (5) (6) The Commission shall take into account any submissions in relation to the application made to it by the applicant or by any other person.
The Commission shall state in writing its reasons for a deter­ mination made by it.

Before making a determination in respect of an application for an authorisation, the Commission shall comply with the requirements of section 62 of this Act.
The Commission shall not make a determination granting an authorisation pursuant to an application under section 58(1) to (4) of this Act unless it is satisﬁed that— (a) The entering into of the contract or arrangement or the arriving at the understanding; or The giving effect to the provision of the contract, ar­ rangement or understanding; or The giving or the requiring of the giving of the covenant; or The carrying out or enforcing of the terms of the covenant— (b) (c) (d) as the case may be, to which the application relates, will in all the circumstances result, or be likely to result, in a beneﬁt to the public which would outweigh the lessening in competition that would result, or would be likely to result or is deemed to result therefrom.
(7) (6A) For the purposes of subsection (6) of this section, a lessening in competition includes a lessening in competition that is not substantial.
The Commission shall not make a determination granting an authorisation pursuant to an application under section 58(5) or (6) of this Act unless it is satisﬁed that— (a) The entering into of the contract or arrangement or the arriving at the understanding; or The giving effect to the exclusionary provision of the contract, or arrangement or understanding— (b) as the case may be, to which the application relates, will in all the circumstances result, or be likely to result, in such a beneﬁt to the public that— (c) The contract or arrangement or understanding should be permitted to be entered into or arrived at; or 149 Part 5 s 62 Commerce Act 1986 Reprinted as at 1 April 2009 (d) The exclusionary provision should be permitted to be given effect to.
The Commission shall not make a determination granting an authorisation pursuant to an application under section 58(7) or (8) of this Act unless it is satisﬁed that— (a) The engaging in the practice of resale price maintenance to which the application relates; or The act or conduct to which the application relates— (b) as the case may be, will in all the circumstances result, or be likely to result, in such a beneﬁt to the public that— (c) (d) Compare: Trade Practices Act 1974 (Aust), s 90(1), (2), (4), (5), (6), (7), (8) The engaging in the practice should be permitted; or The act or conduct should be permitted.
Subsection (6) was amended, as from 1 July 1990, by section 21(1) Commerce Amendment Act 1990 (1990 No 41) by substituting the words “pursuant to an application under section 58(1) to (4)” for the words “under section 58(1)(a) to (d)”.

Subsection (6A) was inserted, as from 2 September 1996, by section 4 Com­ merce Amendment Act 1996 (1996 No 113).
Subsection (7) was amended, as from 1 July 1990, by section 21(2) Commerce Amendment Act 1990 (1990 No 41) by substituting the words “pursuant to an application under section 58(5) or (6)” for the words “under section 58(1)(e) or (f)”.

Subsection (8) was inserted, as from 1 July 1990, by section 21(3) Commerce Amendment Act 1990 (1990 No 41).
Commission to prepare draft determination in relation to restrictive trade practices Before determining an application for an authorisation under section 58 of this Act, the Commission shall prepare a draft determination in relation to the application.
The Commission shall send a copy of the draft determination and a summary of the reasons therefor to— (a) (b) Any person to whom a notice has been given pursuant The applicant: (c) to section 60(2)(c) of this Act: Any person who has given a notice pursuant to section 60(3) of this Act and who in the opinion of the Commis­ sion has such an interest in the application as to justify the Commission sending a copy of the draft determin­ ation to that person: (8) 62 (1) (2) 150 Reprinted as at 1 April 2009 Commerce Act 1986 Part 5 s 62 (3) (4) (5) (6) (d) Any other person who in the opinion of the Commission may assist the Commission in its determination of the application.
The applicant and each other person to whom a copy of the draft determination is sent shall notify the Commission within 10 working days after a date ﬁxed by the Commission (not being a date earlier than the day on which the notice is sent) whether the applicant or other person wishes the Commission to hold a conference in relation to the draft determination.
If each of the persons to whom a draft determination was sent under subsection (2) of this section— (a) Notiﬁes the Commission within the period of 10 work­ ing days prescribed in subsection (3) of this section that the person does not wish the Commission to hold a con­ ference in relation to the draft determination; or (b) Does not notify the Commission within that period that the person wishes the Commission to hold such a con­ ference— the Commission may make the determination at any time after the expiration of that period.
If any of the persons to whom a draft determination was sent under subsection (2) notiﬁes the Commission, in writing, within the period of 10 working days prescribed in subsection (3) that he or she wishes the Commission to hold a conference in relation to the draft determination, the Commission must appoint a date, time, and place for the holding of the confer­ ence and give notice of the date, time, and place so appointed to each of the persons to whom a draft determination was sent under subsection (2).
The Commission may, of its own motion, determine to hold a conference in relation to the draft determination and must ap­ point a date, time, and place for the holding of the conference and give notice of the date, time, and place so appointed to each of the persons to whom the draft determination was sent under subsection (2).
(7) Where the Commission is of the opinion that 2 or more appli­ cations for authorisations that are made by the same person, or by bodies corporate that are interconnected with each other, involve the same or substantially similar issues, the Commis­ 151 Part 5 s 63 Commerce Act 1986 Reprinted as at 1 April 2009 sion may treat the applications as if they constitute a single application, and may prepare a single draft determination in relation to the applications and hold a single conference in re­ lation to that draft determination.
Compare: Trade Practices Act 1974 (Aust), s 90A(1), (2), (5), (6), (13) Section 62(5): substituted, on 14 October 2008, by section 6(1) of the Com­ merce Amendment Act 2008 (2008 No 70).

Section 62(6): substituted, on 14 October 2008, by section 6(1) of the Com­ merce Amendment Act 2008 (2008 No 70).

63 Commission may grant provisional authorisation [Repealed] Section 63 was repealed, as from 1 July 1990, by section 22B Commerce Amendment Act 1990 (1990 No 41).
Procedure at conference 64 (1) At every conference called under section 62 of this Act,— (a) (b) (c) The Commission shall be represented by a member or members nominated by the chairperson: Each person to whom a draft determination was sent under section 62(2) of this Act, and any other person whose presence at the conference is considered by the Commission to be desirable, is entitled to attend and participate personally or, in the case of a body corporate, be represented by a person who, or by persons each of whom, is a director, ofﬁcer, or employee of the body corporate: A person participating in the conference in accordance with paragraph (b) of this subsection is entitled to have another person or other persons present to assist him: (2) (d) No other person is entitled to be present.
The Commission may require any employee of the Commis­ sion to attend a conference called under section 62 of this Act where in the opinion of the Commission that ofﬁcer may assist the Commission in the determination of the application.

(3) At every conference called under section 62 of this Act the Commission shall provide for as little formality and technical­ ity as the requirements of this Act and a proper consideration of the application permits.
152 Reprinted as at 1 April 2009 Commerce Act 1986 Part 5 s 65 (4) The Commission shall cause such record of the conference to be made as is sufﬁcient to set out the matters raised by the persons participating in the conference.

(5) Any member of the Commission attending the conference may terminate the conference when that member is of the opinion that a reasonable opportunity has been given for the expression of the views of persons participating in the conference.
The Commission shall have regard to all matters raised at the conference, and may at any time after the termination of the conference make a determination in respect of the application.

Compare: Trade Practices Act 1974 (Aust), s 90A(7), (8), (9), (11) (6) Subsection (1)(a) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the word “chairperson” for the word “Chairman”.
Subsection (2) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the words “employee of the Commission” for the words “ofﬁcer of the Commission”.
65 (1) (2) Commission may vary or revoke authorisations Subject to subsection (2) of this section, if at any time after the Commission has granted an authorisation under section 58 of this Act the Commission is satisﬁed that— (a) The authorisation was granted on information that was false or misleading in a material particular; or There has been a material change of circumstances since the authorisation was granted; or A condition upon which the authorisation was granted has not been complied with— (b) (c) the Commission may revoke or amend the authorisation or revoke the authorisation and grant a further authorisation in substitution for it.
The Commission shall not revoke or amend an authorisation or revoke an authorisation and substitute a further authorisa­ tion pursuant to subsection (1) of this section unless the person to whom the authorisation was granted and any other person who in the opinion of the Commission is likely to have an in­ terest in the matter is given a reasonable opportunity to make submissions to the Commission and the Commission has re­ gard to those submissions.
Compare: Trade Practices Act 1974 (Aust), s 91(4) 153 Part 5 s 66 Commerce Act 1986 Reprinted as at 1 April 2009 Business acquisitions The heading “Business Acquisitions” was substituted for the heading “Merger or Takeover Proposals”, as from 1 January 1991, by section 23 Commerce Amendment Act 1990 (1990 No 41).
66 Commission may give clearances for business acquisitions (1) A person who proposes to acquire assets of a business or shares may give the Commission a notice seeking clearance for the acquisition.

Subsections (1), (2)(a) and (b), (4), and (5) of section 60 of this Act shall apply in respect of every notice given under subsec­ tion (1) of this section as if the notice was an application under section 58 of this Act.
(2) (3) Within 10 working days after the date of registration of the notice, or such longer period as the Commission and the person who gave the notice agree, the Commission shall either— (a) (b) If it is satisﬁed that the acquisition will not have, or would not be likely to have, the effect of substantially lessening competition in a market, by notice in writ­ ing to the person by or on whose behalf the notice was given, give a clearance for the acquisition; or If it is not satisﬁed that the acquisition will not have, or would not be likely to have, the effect of substan­ tially lessening competition in a market, by notice in writing to the person by or on whose behalf the notice was given, decline to give a clearance for the acquisi­ tion.
(4) If the period speciﬁed in subsection (3) of this section expires without the Commission having given a clearance for the ac­ quisition and without having given a notice under subsection (3)(b) of this section, the Commission shall be deemed to have declined to give a clearance for the acquisition.
(5) A clearance given under subsection (3) of this section ex­ pires— (a) (b) Twelve months after the date on which it was given; or In the event of an appeal being made against the de­ termination of the Commission giving the clearance, and the determination being conﬁrmed by the Court, 12 154 Reprinted as at 1 April 2009 Commerce Act 1986 Part 5 s 67 months after the date on which the determination is con­ ﬁrmed.
Sections 66 to 69 were substituted, as from 1 January 1991, by section 23 Com­ merce Amendment Act 1990 (1990 No 41).

Subsection (3)(a) and (b) were amended, as from 26 May 2001, by section 11(2) Commerce Amendment Act 2001 (2001 No 32) by substituting the words “have, or would be likely to have, the effect of substantially lessening compe­ tition in a market” for the words “result in an effect described in paragraph (a) or paragraph (b) of section 47(1) of this Act”.
See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

Subsection (3)(a) was amended, as from 15 December 2005, by section 3(1) Commerce Amendment Act (No 2) 2005 (2005 No 95) by inserting the word “not” after the word “would”.

Subsection (3)(b) was amended, as from 15 December 2005, by section 3(2) Commerce Amendment Act (No 2) 2005 (2005 No 95) by inserting the word “not” after the word “would”.
67 Commission may grant authorisations for business acquisitions (1) A person who proposes to acquire assets of a business or shares may give the Commission a notice seeking an authorisation for the acquisition.

Subsections (1), (2)(a) and (b), (4), and (5) of section 60 of this Act shall apply in respect of every notice given under subsec­ tion (1) of this section as if the notice was an application under section 58 of this Act.
(2) (3) Within 60 working days after the date of registration of the notice, or such longer period as the Commission and the person who gave the notice agree, the Commission shall— (a) If it is satisﬁed that the acquisition will not have, or would not be likely to have, the effect of substantially lessening competition in a market, by notice in writ­ ing to the person by or on whose behalf the notice was given, give a clearance for the acquisition; or If it is satisﬁed that the acquisition will result, or will be likely to result, in such a beneﬁt to the public that it should be permitted, by notice in writing to the person by or on whose behalf the notice was given, grant an authorisation for the acquisition; or If it is not satisﬁed as to the matters referred to in para­ graph (a) or paragraph (b) of this subsection, by notice (b) (c) 155 Part 5 s 68 Commerce Act 1986 Reprinted as at 1 April 2009 in writing to the person by or on whose behalf the no­ tice was given, decline to give a clearance or grant an authorisation for the acquisition.
(4) If the period speciﬁed in subsection (3) of this section expires without the Commission having given a clearance or having granted an authorisation or having declined to do so, the Com­ mission shall be deemed to have declined to give a clearance or grant an authorisation.

The Commission shall state in writing its reasons for a deter­ mination made by it under subsection (3) of this section.
(6) A clearance given or an authorisation granted under subsection (5) (3) of this section expires— (a) (b) Twelve months after the date on which it was given or granted; or In the event of an appeal being made against the de­ termination of the Commission giving the clearance or granting the authorisation, and the determination of the Commission being conﬁrmed by the Court, 12 months after the date on which the determination is conﬁrmed.
Sections 66 to 69 were substituted, as from 1 January 1991, by section 23 Com­ merce Amendment Act 1990 (1990 No 41).

Subsection (3)(a) was amended, as from 26 May 2001, by section 11(2) Com­ merce Amendment Act 2001 (2001 No 32) by substituting the words “have, or would be likely to have, the effect of substantially lessening competition in a market” for the words “result in an effect described in paragraph (a) or para­ graph (b) of section 47(1) of this Act”.
See section 26 of that Act as to proceed­ ings barred or commenced before 26 May 2001.

Subsection (3)(a) was amended, as from 15 December 2005, by section 4 Com­ merce Amendment Act (No 2) 2005 (2005 No 95) by inserting the word “not” after the word “would”.
Provisions applying to applications for clearances and authorisations for business acquisitions Every person who gives a notice under section 66 or section 67 of this Act shall from time to time produce or, as the case may be, furnish to the Commission, within such time as it may specify, such documents and information in relation to the ac­ quisition as may be required by the Commission for the pur­ pose of enabling it to exercise its functions under this section or section 66 or section 67 of this Act.
68 (1) 156 Reprinted as at 1 April 2009 Commerce Act 1986 Part 5 s 69A (2) Notwithstanding section 66 or section 67 of this Act, where the Commission is of the opinion that a proposed acquisition is, for reasons other than arising from the application of any provision of this Act, unlikely to be proceeded with, the Com­ mission may, in its discretion, decline to give a clearance or grant an authorisation for that acquisition under this section.
The Commission shall state in writing its reasons for declining to give a clearance or grant an authorisation under subsection (2) of this section.
(3) (4) A person who has given a notice in respect of an acquisition under section 66 or section 67 of this Act may at any time, by notice in writing to the Commission, advise the Commission that it does not wish the Commission to give a clearance or grant an authorisation and the Commission shall accordingly not give a clearance or grant an authorisation in respect of that acquisition.
The Commission may consult with any person who, in the opinion of the Commission, is able to assist it in making a determination under section 66 or section 67 of this Act, as the case may be.

Sections 66 to 69 were substituted, as from 1 January 1991, by section 23 Com­ merce Amendment Act 1990 (1990 No 41).
(5) 69 Effect of clearance or authorisation Nothing in section 27 or section 47 of this Act applies to the acquisition of assets of a business or shares if the assets or shares are acquired in accordance with a clearance or an au­ thorisation and while the clearance or authorisation is in force.

Sections 66 to 69 were substituted, as from 1 January 1991, by section 23 Com­ merce Amendment Act 1990 (1990 No 41).
69A Commission may accept undertakings (1) In giving a clearance or granting an authorisation under section 66 or section 67 of this Act, the Commission may accept a written undertaking given by or on behalf of the person who gave a notice under section 66(1) or section 67(1) of this Act, as the case may be, to dispose of assets or shares speciﬁed in the undertaking.
157 Part 5 s 69AB Commerce Act 1986 Reprinted as at 1 April 2009 (2) The Commission shall not accept an undertaking in relation to the giving of a clearance or the granting of an authorisation under section 66 or section 67 of this Act, other than an under­ taking given under subsection (1) of this section.
(3) An undertaking given to the Commission under subsection (1) of this section is deemed to form part of the clearance given or the authorisation granted in relation to the acquisition to which the undertaking relates.

Sections 69A and 69B were inserted, as from 1 January 1991, by section 23 Commerce Amendment Act 1990 (1990 No 41).
69AB Authorisation or clearance void if undertaking (1) (2) contravened If a person contravenes an undertaking accepted under section 69A, the clearance given or the authorisation granted in rela­ tion to the acquisition to which the undertaking relates is void and of no effect from the date it was given or granted.

Subsection (1) does not prevent the Court from making an order under sections 85A to 85C in relation to the undertak­ ing.
Section 69AB: inserted, on 14 October 2008, by section 7(1) of the Commerce Amendment Act 2008 (2008 No 70).
69AC Variation of undertaking (1) The Commission may, on an application made under subsec­ tion (2), accept a variation of an undertaking given under sec­ tion 69A if it considers that the variation would not have ma­ terially affected its decision to give the clearance or grant the authorisation in relation to the acquisition to which the under­ taking relates if the variation had been proposed at the time of the decision.
(2) An application for a variation under subsection (1)— (a) may be made only by the person who gave the under­ taking or on whose behalf the undertaking was given; and (b) must be made no later than 20 working days before the date on which the relevant obligation under the under­ taking must be met.
158 Reprinted as at 1 April 2009 Commerce Act 1986 Part 5 s 69B (3) The Commission must notify the person who made the appli­ cation of its decision on the application no later than 3 working days before the relevant obligation under the undertaking must be met.
(4) A variation under subsection (1)— (a) (b) comes into force on a date speciﬁed in the variation (being a date that is on or after the date on which the variation is accepted); and is deemed to form part of the undertaking (and, accord­ ingly, is deemed under section 69A(3) to form part of the clearance given or the authorisation granted in rela­ tion to the acquisition to which the undertaking relates).
Section 69AC: inserted, on 14 October 2008, by section 7(1) of the Commerce Amendment Act 2008 (2008 No 70).
69B Conferences in relation to business acquisitions (1) Before making a determination under section 66(3) or section 67(3) of this Act in relation to an acquisition, the Commission may determine to hold a conference and shall appoint a date, time, and place for the holding of the conference and give no­ tice of the date, time, and place so appointed and of the matters to be considered at the conference to the persons entitled to be present at the conference.
The provisions of section 64 of this Act shall apply to every conference held under this section as if— (a) (2) (b) (c) Every reference in that section to a conference called under section 62 of this Act, were a reference to a con­ ference held under this section; and The reference in subsection (1)(b) of that section to a person to whom a draft determination was sent under section 62(2) of this Act, were a reference to the person by or on whose behalf a notice was given under section 66(1) or section 67(1) of this Act, as the case may be; and The reference in subsection (6) of that section to a de­ termination in respect of an application, were a refer­ ence to a determination under section 66(3) or section 67(3) of this Act, as the case may be.
159 Part 5 s 70 Commerce Act 1986 Reprinted as at 1 April 2009 Sections 69A and 69B were inserted, as from 1 January 1991, by section 23 Commerce Amendment Act 1990 (1990 No 41).

Authorisations in respect of controlled goods or services [Repealed] Heading: repealed, on 14 October 2008, by section 8 of the Commerce Amend­ ment Act 2008 (2008 No 70).
70 Authorisations in respect of prices, revenues, and quality standards [Repealed] Section 70: repealed, on 14 October 2008, by section 8 of the Commerce Amendment Act 2008 (2008 No 70).

70A Considerations to be observed by Commission [Repealed] Section 70A: repealed, on 14 October 2008, by section 8 of the Commerce Amendment Act 2008 (2008 No 70).

70B Procedure for making authorisations [Repealed] Section 70B: repealed, on 14 October 2008, by section 8 of the Commerce Amendment Act 2008 (2008 No 70).
70C Remedies and penalties if overcharging or quality standards breached [Repealed] Section 70C: repealed, on 14 October 2008, by section 8 of the Commerce Amendment Act 2008 (2008 No 70).

70D Terms of authorisations [Repealed] Section 70D: repealed, on 14 October 2008, by section 8 of the Commerce Amendment Act 2008 (2008 No 70).

70E Investigations and audits [Repealed] Section 70E: repealed, on 14 October 2008, by section 8 of the Commerce Amendment Act 2008 (2008 No 70).
160 Reprinted as at 1 April 2009 Commerce Act 1986 Part 6 s 74AA 70F Revocation and amendment of authorisations [Repealed] Section 70F: repealed, on 14 October 2008, by section 8 of the Commerce Amendment Act 2008 (2008 No 70).

71 72 73 74 Provisional authorisations [Repealed] Section 71: repealed, on 14 October 2008, by section 8 of the Commerce Amendment Act 2008 (2008 No 70).
Alternative undertakings [Repealed] Section 72: repealed, on 14 October 2008, by section 8 of the Commerce Amendment Act 2008 (2008 No 70).

Conferences in relation to authorisations about controlled goods or services [Repealed] Section 73: repealed, on 14 October 2008, by section 8 of the Commerce Amendment Act 2008 (2008 No 70).

Levies [Repealed] Section 74: repealed, on 14 October 2008, by section 8 of the Commerce Amendment Act 2008 (2008 No 70).
Part 6 Enforcement, remedies, and appeals Cease and desist orders The heading “Cease and desist orders” was inserted, as from 1 April 2002, by section 15 Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

See clause 2 Commerce Amendment Act 2001 Commencement Order 2002 (SR 2002/64).
74AA Cease and Desist Commissioners (1) The Governor­General, on the recommendation of the Minis­ ter (which recommendation may be given only after consult­ ation by the Minister with the Attorney­General), must appoint 2 persons as Commissioners for the sole purpose of hearing 161 Part 6 s 74A Commerce Act 1986 Reprinted as at 1 April 2009 (2) (3) cease and desist applications in accordance with sections 74A to 74C.
The Minister may not recommend a person for appointment as a Commissioner unless that person— (a) (b) would qualify for appointment as a member of the Com­ mission under section 9(4)(a) of this Act and sections 29(2) and 30(2) of the Crown Entities Act 2004. is a barrister or solicitor; and The notice of appointment must— (a) state— (i) (ii) the date on which the appointment takes effect; and the term of appointment, which may be 5 years or any shorter period that is stated in the notice; and (b) be published by the Minister in the Gazette as soon as practicable after being given.
(4) Section 106 of this Act and sections 31, 32(2) to (4), 34, 35, 39 to 45, 47, 48, 62 to 68, 122 to 126 (as applied by section 106(3B) of this Act), and 188 to 190 of the Crown Entities Act 2004 apply to a Commissioner, with any necessary modiﬁca­ tion, as if he or she were a member of the Commission.

(5) A Commissioner must act independently of the Commission (6) in carrying out his or her functions under this Act.
The Commission must include in its annual report under sec­ tion 150 of the Crown Entities Act 2004 the information in section 152(1)(a) and (d) to (f) of that Act, in respect of each Commissioner.

Section 74AA was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
74A Commissioner may make cease and desist orders (1) A Commissioner may make a cease and desist order, by con­ sent or following a hearing held under section 74C, if the Com­ missioner is satisﬁed that— (a) a prima facie case has been made out that a person has engaged in any conduct referred to in section 80(1) or section 83(1); and it is necessary to act urgently— (b) 162 Reprinted as at 1 April 2009 Commerce Act 1986 Part 6 s 74B (i) (ii) to prevent a particular person or consumers from suffering serious loss or damage: in the interests of the public.
(2) Subject to subsection (3)(a), the effect of a cease and desist order is to restrain conduct for any period and on any terms that are speciﬁed in the order.
(3) A cease and desist order made under subsection (1)— (a) may require a person to do something only if the Com­ missioner is satisﬁed that restraining the person from engaging in the conduct will not restore competition, or the potential for competition, in a market: (b) must be in writing with the facts and reasons for it (c) clearly set out: is deemed to be a determination of the Commission that is subject to appeal in accordance with sections 91 to 97.
Sections 74A to 74D were inserted, as from 1 April 2002, by section 15 Com­ merce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to pro­ ceedings barred or commenced before 26 May 2001.

See clause 2 Commerce Amendment Act 2001 Commencement Order 2002 (SR 2002/64).
74B Investigation, notice, and opportunity to be heard A cease and desist order may be made under section 74A only if— (a) an investigation has been conducted into the alleged contravention of this Act and a report has been submit­ ted to the Commission recommending that a cease and desist order be sought; and the Commission agrees with the recommendation in the report and directs an employee of the Commission to make an application for a cease and desist order; and the person against whom an order is sought is served with notice in writing of the following matters: (i) (ii) (iii) the person against whom an order is sought has an op­ portunity to— (i) the nature of the alleged contravention: the terms of the proposed order: the reasons for the order; and access the relevant information held by the Com­ mission: (b) (c) (d) 163 Part 6 s 74C Commerce Act 1986 Reprinted as at 1 April 2009 (ii) make a written submission: (iii) consent to the terms of the proposed order or have the matter determined by a Commissioner fol­ lowing a hearing.
Sections 74A to 74D were inserted, as from 1 April 2002, by section 15 Com­ merce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to pro­ ceedings barred or commenced before 26 May 2001.

See clause 2 Commerce Amendment Act 2001 Commencement Order 2002 (SR 2002/64).

Paragraph (b) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the words “employee of the Commission” for the words “ofﬁcer of the Commission”.
74C Procedure at cease and desist hearing (1) At every hearing for a cease and desist order, the Commis­ sioner presiding over the hearing— (a) must provide for as little formality and technicality as the requirements of this Act and a proper consideration of the matter permits: (b) must permit the Commission and the person against whom an order is sought to appear and give evidence, to be represented by counsel, to call witnesses, and to cross­examine witnesses: has the necessary incidental powers in relation to the hearing of evidence, including the power to exclude ir­ relevant or repetitive evidence and the powers set out in sections 99 and 100.
(c) For the purposes of conducting a hearing for a cease and de­ sist order, a Commissioner may exercise the powers in section 98 as if he or she were the Commission.

Sections 74A to 74D were inserted, as from 1 April 2002, by section 15 Com­ merce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to pro­ ceedings barred or commenced before 26 May 2001.

See clause 2 Commerce Amendment Act 2001 Commencement Order 2002 (SR 2002/64).
Subsection (2) was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
(2) 74D Pecuniary penalties for contravention of cease and desist order If the Court is satisﬁed on the application of the Commission that a person has acted in contravention of an order made under section 74A, the Court may order the person to pay to the (1) 164 Reprinted as at 1 April 2009 Commerce Act 1986 Part 6 s 75 (2) (3) (4) (5) 75 (1) Crown any pecuniary penalty that the Court determines to be appropriate.

The amount of any pecuniary penalty must not exceed $500,000.
[Repealed] [Repealed] Proceedings under this section may be commenced within 3 years after the matter giving rise to the contravention was dis­ covered or ought reasonably to have been discovered.

How­ ever, no proceedings under this section may be commenced 10 years or more after the matter giving rise to the contravention.

Sections 74A to 74D were inserted, as from 1 April 2002, by section 15 Com­ merce Amendment Act 2001 (2001 No 32).
See section 26 of that Act as to pro­ ceedings barred or commenced before 26 May 2001.

See clause 2 Commerce Amendment Act 2001 Commencement Order 2002 (SR 2002/64).

Section 74D(3): repealed, on 14 October 2008, by section 12(2)(a) of the Com­ merce Amendment Act 2008 (2008 No 70).

Section 74D(4): repealed, on 14 October 2008, by section 12(2)(a) of the Com­ merce Amendment Act 2008 (2008 No 70).
Jurisdiction of courts Jurisdiction of High Court In accordance with this Part of this Act, the High Court shall hear and determine the following matters: (a) In the case of contraventions of Part 2 of this Act,— (i) Proceedings for the recovery of pecuniary penal­ ties under section 80 of this Act: (ii) Applications for injunctions under section 81 of this Act: (aa) (b) (iii) Actions for damages under section 82 of this Act: applications for orders under section 74D: In the case of contraventions of Part 3 of this Act,— (i) Proceedings for the recovery of pecuniary penal­ ties under section 83 of this Act: (ii) Applications for injunctions under section 84 of this Act: (iia) Actions for damages under section 84A of this Act: (iii) Proceedings under section 85 of this Act: 165 Part 6 s 76 Commerce Act 1986 Reprinted as at 1 April 2009 (c) (ii) (iii) in the case of contraventions relating to Part 4,— (i) proceedings for the recovery of pecuniary penal­ ties under section 86 or 87: applications for orders under section 86A, 86C, or 87A: applications for injunctions under section 87C: (d) Applications for orders under section 89 of this Act.
Appeals against determinations of the Commission.

(e) applications for orders under section 80B or section (f) 80C: proceedings for offences against section 80E: applications for orders under section 82A: applications for orders under section 85A or 85B.

(g) (h) (i) Subsection (1)(aa) was inserted, as from 26 May 2001, by section 16(1) Com­ merce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
Subsection (1)(b)(i) was substituted, as from 1 January 1991, by section 25 Commerce Amendment Act 1990 (1990 No 41).

Subsection (1)(b)(iia) was inserted, as from 2 September 1996, by section 5 Commerce Amendment Act 1996 (1996 No 113).

Section 75(1)(c): substituted, on 14 October 2008, by section 9(1) of the Com­ merce Amendment Act 2008 (2008 No 70).

Subsection (1)(e) was inserted, as from 15 August 1991, by section 3(4) Judi­ cature Amendment Act 1991 (1991 No 60).
Subsection (1)(f) to (h) were inserted, as from 26 May 2001, by section 16(2) Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

Section 75(1)(i): added, on 14 October 2008, by section 9(2) of the Commerce Amendment Act 2008 (2008 No 70).
Subsection (2) was repealed, as from 15 August 1991, by section 3(4) Judicature Amendment Act 1991 (1991 No 60), following the abolition of the Administra­ tive Division of the High Court by section 3(1) of that Act.

Jurisdiction of District Courts In accordance with this Part of this Act, the District Court shall hear and determine proceedings for offences against sections 86B, 87B, 100, and 103 of this Act.
Section 76: amended, on 14 October 2008, by section 10 of the Commerce Amendment Act 2008 (2008 No 70).
(2) 76 166 Reprinted as at 1 April 2009 Commerce Act 1986 Part 6 s 77 77 (1) Additional lay members of High Court for purposes of appellate jurisdiction in respect of Commission determinations For the purposes of the exercise by the Court of its jurisdiction and powers under this Part of this Act, there shall be lay mem­ bers of the Court who shall be persons appointed from time to time by the Governor­General.
(2) No person shall be appointed as a lay member of the Court unless, in the opinion of the Governor­General, that person is qualiﬁed for appointment by virtue of that person’s know­ ledge or experience in industry, commerce, economics, law, or accountancy.

(4) (3) A lay member of the Court shall hold ofﬁce for such term, not exceeding 5 years, as the Governor­General shall specify in that member’s instrument of appointment, but may from time to time be reappointed.
There shall be paid to such lay members, out of money appropriated by Parliament for the purpose, remuneration by way of fees, salary, or allowances, and travelling allowances and expenses, in accordance with the Fees and Travelling Allowances Act 1951, and the provisions of that Act shall apply accordingly as if the Court were a statutory Board within the meaning of that Act.
The Governor­General may terminate the appointment of a lay member of the Court for inability to perform the functions of the ofﬁce, bankruptcy, neglect of duty, or misconduct, proved to the satisfaction of the Governor­General.

(5) (6) Any lay member of the Court may resign his ofﬁce by notice in writing to the Minister.
(7) Notwithstanding that the term of ofﬁce of a lay member of the Court has expired or that a lay member has resigned that ofﬁce, that person shall be deemed to continue as a lay member of the Court for the purpose of completing the hearing of any matter before that person, as a lay member of the Court, which was commenced before the expiration of the term of ofﬁce or before the resignation took effect, as the case may be.
Before entering upon the exercise of the duties of their ofﬁce, the lay members shall take an oath before a Judge of the Court (8) 167 Part 6 s 77 Commerce Act 1986 Reprinted as at 1 April 2009 (9) that they will faithfully and impartially perform the duties of their ofﬁce.

The presence of a Judge of the Court and of at least 1 lay member shall be necessary to constitute a sitting of the Court.
(10) The decision of a majority (including the Judge or, where more than 1 Judge sits, including a majority of the Judges) of the members present at a sitting of the Court shall be the decision of the Court.

If the members present are equally divided in opinion, the de­ cision of the Judge, or of a majority of the Judges, shall be the decision of the Court.
If any question before the Court cannot be decided in accord­ ance with subsections (10) and (11) of this section, the ques­ tion shall be referred to the Court of Appeal for decision in ac­ cordance with the practice and procedure of that Court, which for the purpose shall have all the powers of the High Court under this Part of this Act.
(12) (11) (13) The decision of the Court of Appeal in any proceedings under this section takes effect, and must be entered, as if it were a decision of the High Court under this Act.
(14) Notwithstanding anything in the foregoing provisions of this section, a Judge of the Court sitting alone shall have jurisdic­ tion to make any of the following orders: (a) An order on any application made in the course of any proceedings: (b) An order that is not opposed: (c) An order in any proceedings that the parties agree should be heard and determined by a Judge alone: (d) An order in any proceedings where the matter in issue (e) (f) is substantially a question of law only: An order made on the application of any party directing that any proceedings should be heard and determined by a Judge alone on the ground that the matter in issue is substantially a question of law only: An order granting the leave of the Court to appeal to the Court of Appeal.
Compare: 1975 No 113 s 122A; 1983 No 144 s 41; 1985 No 7 s 2 168 Reprinted as at 1 April 2009 Commerce Act 1986 Part 6 s 78 Section 77 was amended, as from 15 August 1991, by section 3(4) Judicature Amendment Act 1991 (No 60) by omitting the words “the Administrative Div­ ision of” wherever they occur.

Section 77 was amended, as from 15 August 1991, by section 3(4) Judicature Amendment Act 1991 (No 60) by substituting the word “Court” for the word “Division” wherever it occurs.
Subsection (5) was amended, as from 1 January 2002, by section 70(1) Human Rights Amendment Act 2001 (2001 No 96), by substituting the words “inability to perform the functions of the ofﬁce” for the word “disability”.

Subsection (13) was amended, as from 1 January 2004, by section 48(1) Supreme Court Act 2003 (2003 No 53) by substituting the words “takes effect, and must be entered,” for the words “shall be ﬁnal, and shall take effect and be entered”.
See sections 50 to 55 of that Act for the transitional and savings provisions.
78 (1) Lay members of High Court in certain cases For the purposes of the exercise by the High Court of its jur­ isdiction and powers under sections 80 to 85 of this Act in respect of proceedings which relate to any of sections 27 to 29, 36, 36A, 37, 38, or 47 of this Act, a Judge of the Court may, of his own motion or on the application of any party to the proceedings, require any person or persons appointed as a lay member or lay members of the High Court pursuant to section 77 of this Act, to hear and determine the proceedings as an additional lay member or additional lay members of the Court.
(2) Where a lay member of the High Court is required pursuant to subsection (1) of this section to hear and determine any pro­ ceedings as an additional lay member of the Court, that person shall for the purposes of those proceedings be a lay member of the Court.
The provisions of subsections (10) to (13) of section 77 of this Act shall apply in respect of any proceedings to which this section applies as if the proceedings to which those provisions refer were proceedings in the High Court under sections 80 to 85 of this Act.
(3) (4) Notwithstanding anything in the foregoing provisions of this section, a Judge of the Court sitting alone shall have jurisdic­ tion— (a) To make any of the following orders— 169 Part 6 s 78 Commerce Act 1986 Reprinted as at 1 April 2009 (i) An order on any application made in the course of any proceedings: (ii) An order that is not opposed: (iii) An order in any proceedings that the parties agree should be heard and determined by a Judge alone: (iv) An order in any proceedings where the matter in issue is substantially a question of law only: (v) An order made on the application of any party directing that any proceedings should be heard and determined by a Judge alone on the ground that the matter in issue is substantially a question of law only: (vi) An order granting the leave of the Court to appeal to the Court of Appeal: (f) (e) (c) (d) (b) To determine any question as to the application of sec­ tion 30 of this Act arising in any proceedings: To exercise the power to make an order directing the payment of a pecuniary penalty pursuant to section 80 or section 83 of this Act: To exercise the power to grant an injunction pursuant to section 81 or section 84 of this Act: To exercise the power to make an order for the payment of damages in proceedings under section 82 or section 84A of this Act: To exercise the power to make an order directing the disposal of shares or assets under section 85 of this Act.
Subsection (1) was amended, as from 1 January 1991, by section 26(1)(a) and section 26(2) Commerce Amendment Act 1990 (1990 No 41) by substituting the number “85” for the number “82”.

Subsection (1) was amended, as from 1 January 1991, by section 26(1)(b), Com­ merce Amendment Act 1990 (1990 No 41) by substituting the expression “, 36, 36A, or 47” for the expression “or 36”.
Subsection (1) was amended, as from 15 August 1991, by section 3(4) Judica­ ture Amendment Act 1991 (1991 No 60) by deleting the words “the Adminis­ trative Division of”.

Subsection (1) was amended, as from 2 September 1996, by section 6 Com­ merce Amendment Act 1996 (1996 No 113) by inserting, after the expression “36A”, the expression “37, 38,”.
Subsection (2) was amended, as from 15 August 1991, by section 3(4) Judica­ ture Amendment Act 1991 (1991 No 60) by deleting the words “the Adminis­ trative Division of”.

170 Reprinted as at 1 April 2009 Commerce Act 1986 Part 6 s 79B Subsection (3) was amended, as from 1 January 1991, by section 26(1)(a) and section 26(2) Commerce Amendment Act 1990 (1990 No 41) by substituting the number “85” for the number “82”.
Subsection (4)(e) was amended, as from 1 January 1991, by section 26(3)(c) Commerce Amendment Act 1990 (1990 No 41) by inserting the words “or section 84A of this Act”.

Subsection (4)(f) was inserted, as from 1 January 1991, by section 26(3)(d) Commerce Amendment Act 1990 (1990 No 41).
79 Evidence not otherwise admissible In the exercise of its jurisdiction under this Part of this Act, except in respect of criminal proceedings and proceedings for pecuniary penalties of this Act, the Court may receive in evi­ dence any statement, document, or information that would not be otherwise admissible that may in its opinion assist it to deal effectively with the matter.

Section 79: amended, on 14 October 2008, by section 11 of the Commerce Amendment Act 2008 (2008 No 70).
Section 79 was amended, as from 1 January 1991, by section 17 Commerce Amendment Act 1990 (1990 No 41) by inserting the expression “or section 83”.

Proceedings for pecuniary penalties inserted, on 14 October 2008, by section 12(1) of the Commerce Heading: Amendment Act 2008 (2008 No 70).
79A Proceedings for pecuniary penalties In any proceedings under this Part for a pecuniary penalty— the standard of proof is the standard of proof applying (a) in civil proceedings; and the Commission may, by the order of the Court, obtain discovery and administer interrogatories.

(b) Section 79A: inserted, on 14 October 2008, by section 12(1) of the Commerce Amendment Act 2008 (2008 No 70).
79B Relationship between pecuniary penalties and criminal liability (1) Once criminal proceedings against a person for an offence under section 86B or 87B are determined, the High Court may not order the person to pay a pecuniary penalty in respect of 171 Part 6 s 80 Commerce Act 1986 Reprinted as at 1 April 2009 the conduct, events, transactions, or other matters that were the subject of the criminal proceedings.
(2) Once civil proceedings against a person for a pecuniary penalty under this Part are determined, the person may not be convicted of an offence under section 86B or 87B in respect of the conduct, events, transactions, or other matters that were the subject of the civil proceedings.

Section 79B: inserted, on 14 October 2008, by section 12(1) of the Commerce Amendment Act 2008 (2008 No 70).
Restrictive trade practices 80 (1) Pecuniary penalties If the Court is satisﬁed on the application of the Commission that a person— (a) Has contravened any of the provisions of Part 2 of this Act; or (b) Has attempted to contravene such a provision; or (c) Has aided, abetted, counselled, or procured any other person to contravene such a provision; or (e) (d) Has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contra­ vene such a provision; or Has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of such a provision; or Has conspired with any other person to contravene such a provision,— (f) the Court may order the person to pay to the Crown such pe­ cuniary penalty as the Court determines to be appropriate.
The Court must order an individual who has engaged in any conduct referred to in subsection (1) to pay a pecuniary penalty, unless the Court considers that there is good reason for not making that order.

In determining an appropriate penalty under this section, the Court must have regard to all relevant matters, in particular,— any exemplary damages awarded under section 82A; (a) and in the case of a body corporate, the nature and extent of any commercial gain.
(b) (2) (2A) 172 Reprinted as at 1 April 2009 Commerce Act 1986 Part 6 s 80 (2B) The amount of any pecuniary penalty must not, in respect of each act or omission, exceed,— (a) (b) in the case of an individual, $500,000; or in the case of a body corporate, the greater of— (i) (ii) $10,000,000; or either— (A) if it can be readily ascertained and if the Court is satisﬁed that the contravention oc­ curred in the course of producing a com­ mercial gain, 3 times the value of any com­ mercial gain resulting from the contraven­ tion; or if the commercial gain cannot be read­ ily ascertained, 10% of the turnover of the body corporate and all of its intercon­ nected bodies corporate (if any).
(B) (3) (4) (5) [Repealed] [Repealed] Proceedings under this section may be commenced within 3 years after the matter giving rise to the contravention was dis­ covered or ought reasonably to have been discovered.

How­ ever, no proceedings under this section may be commenced 10 years or more after the matter giving rise to the contravention.
(6) Where conduct by any person constitutes a contravention of 2 or more provisions of Part 2 of this Act, proceedings may be instituted under this Act against that person in relation to the contravention of any one or more of the provisions; but no person shall be liable to more than one pecuniary penalty under this section in respect of the same conduct.
Compare: Trade Practices Act 1974 (Aust), ss 76, 77 Subsection (1)(f) was amended, as from 1 July 1990, by section 28(a) and (b) Commerce Amendment Act 1990 (1990 No 41) by substituting the ex­ pressions “$500,000” and “$5,000,000” for the expressions “$100,000” and “$300,000”, respectively.
Subsection (1)(f) was amended, as from 26 May 2001, by section 17(1) Com­ merce Amendment Act 2001 (2001 No 32) by omitting the words “, not exceeding [$500,000] in the case of a person not being a body corporate, or [$5,000,000] in the case of a body corporate, in respect of each act or omission”.

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
173 Part 6 s 80A Commerce Act 1986 Reprinted as at 1 April 2009 Subsection (2) was substituted, and subsections (2A) and (2B) were inserted, as from 26 May 2001, by section 17(2) Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

Section 80(3): repealed, on 14 October 2008, by section 12(2)(b) of the Com­ merce Amendment Act 2008 (2008 No 70).
Section 80(4): repealed, on 14 October 2008, by section 12(2)(b) of the Com­ merce Amendment Act 2008 (2008 No 70).

Subsection (5) was substituted, as from 26 May 2001, by section 17(3) Com­ merce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
80A Body corporate not to indemnify certain persons in respect of pecuniary penalties (1) A body corporate must not indemnify a director, servant, or agent of the body corporate or an interconnected body corpo­ rate in respect of— (a) liability for payment of a pecuniary penalty under sec­ tion 80 that arises out of a provision of a contract, ar­ rangement, or understanding that is deemed, under sec­ tion 30, to have the purpose, or to have or to be likely to have the effect, of substantially lessening competition in a market; or costs incurred by that director, servant, or agent in de­ fending or settling any proceeding relating to that liabil­ ity.
(b) (2) An indemnity given in contravention of subsection (1) is void.

(3) In this section,— agent includes a former agent director includes a former director indemnify includes relieve or excuse from liability, whether before or after the liability arises; and indemnity has a corres­ ponding meaning servant includes a former servant.

Sections 80A to 80E were inserted, as from 26 May 2001, by section 18 Com­ merce Amendment Act 2001 (2001 No 32).
See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

174 Reprinted as at 1 April 2009 Commerce Act 1986 Part 6 s 80C (2) (3) (4) (5) 80B Pecuniary penalties for contravention of section 80A (1) If the Court is satisﬁed on the application of the Commission that a body corporate has acted in contravention of section 80A, the Court may order the body corporate to pay to the Crown any pecuniary penalty that the Court determines to be appropriate.
The amount of any pecuniary penalty must not, in respect of each act or omission, exceed 2 times the value of any indem­ nity given in contravention of section 80A.

[Repealed] [Repealed] Proceedings under this section may be commenced within 3 years after the matter giving rise to the contravention was dis­ covered or ought reasonably to have been discovered.

How­ ever, no proceedings under this section may be commenced 10 years or more after the matter giving rise to the contravention.
Sections 80A to 80E were inserted, as from 26 May 2001, by section 18 Com­ merce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

Section 80B(3): repealed, on 14 October 2008, by section 12(2)(c) of the Com­ merce Amendment Act 2008 (2008 No 70).

Section 80B(4): repealed, on 14 October 2008, by section 12(2)(c) of the Com­ merce Amendment Act 2008 (2008 No 70).
80C Court may order certain persons to be excluded from management of body corporate The Court may make an order that a person must not, without the leave of the Court, be a director or promoter of, or in any way, either directly or indirectly, be concerned or take part in the management of, a body corporate for a period not exceed­ ing 5 years as may be speciﬁed in the order, if the Court is satisﬁed on the application of the Commission that— (a) the person has entered into a contract or arrangement, or arrived at an understanding, containing a provision that is deemed by section 30(1) to have the purpose, or to have or to be likely to have the effect, of substantially lessening competition in a market: the person has given effect to a provision of a contract, arrangement, or understanding that is deemed by sec­ tion 30(1) to have the purpose, or to have or to be likely (b) 175 Part 6 s 80D Commerce Act 1986 Reprinted as at 1 April 2009 to have the effect, of substantially lessening competi­ tion in a market: the person has entered into a contract or arrangement, or arrived at an understanding, that contains an exclu­ sionary provision: the person has given effect to an exclusionary provision of a contract, arrangement, or understanding.
(c) (d) Sections 80A to 80E were inserted, as from 26 May 2001, by section 18 Com­ merce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

80D Application for order under section 80C (1) The Commission must give not less than 10 days’ notice of its intention to apply for an order under section 80C to the person against whom the order is sought.
(2) On the hearing of the Commission’s application or an applica­ tion for leave by a person against whom an order under section 80C has been made,— (a) (b) the Commission must appear and call the attention of the Court to any matter that seems to it to be relevant, and may give evidence or call witnesses; and the person against whom the order is sought or has been made may appear and give evidence or call witnesses.
The Registrar of the Court must, as soon as practicable after the making of an order under section 80C, give notice of the order to— (a) (b) the person against whom the order has been made; and the Registrar of Companies, and the Registrar of Com­ panies must give notice in the Gazette of the name of the person against whom the order is made.

(3) Sections 80A to 80E were inserted, as from 26 May 2001, by section 18 Com­ merce Amendment Act 2001 (2001 No 32).
See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

80E Offence to act in contravention of order made under section 80C Every person commits an offence who acts in contravention of an order made under section 80C.

(1) 176 Reprinted as at 1 April 2009 Commerce Act 1986 Part 6 s 82 (2) A person who commits an offence against subsection (1) is liable on conviction to imprisonment for a term not exceeding 5 years or to a ﬁne not exceeding $200,000.
The offence is triable on indictment.

Sections 80A to 80E were inserted, as from 26 May 2001, by section 18 Com­ merce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
(3) 81 Injunctions may be granted by Court for contravention of Part 2 The Court may, on the application of the Commission or any other person, grant an injunction restraining a person from en­ gaging in conduct that constitutes or would constitute any of the following— (a) A contravention of any of the provisions of Part 2 of this Act: (b) Any attempt to contravene such a provision: (c) Aiding, abetting, counselling, or procuring any other person to contravene such a provision: Inducing, or attempting to induce, any other person, whether by threats, promises or otherwise, to contra­ vene such a provision: Being in any way directly or indirectly, knowingly con­ cerned in, or party to, the contravention by any other person of such a provision: Conspiring with any other person to contravene such a provision.
(d) (e) (f) Compare: Trade Practices Act 1974 (Aust), s 80(1), (2) 82 (1) Actions for damages for contravention of Part 2 Every person is liable in damages for any loss or damage caused by that person engaging in conduct that constitutes any of the following— (a) A contravention of any of the provisions of Part 2 of this Act: (b) Aiding, abetting, counselling, or procuring the contra­ (c) vention of such a provision: Inducing by threats, promises, or otherwise the contra­ vention of such a provision: 177 Part 6 s 82A Commerce Act 1986 Reprinted as at 1 April 2009 (d) (e) Being in any way directly or indirectly, knowingly con­ cerned in, or party to, the contravention of such a pro­ vision: Conspiring with any other person in the contravention of such a provision.
(2) An action under subsection (1) may be commenced within 3 years after the matter giving rise to the contravention was dis­ covered or ought reasonably to have been discovered.

How­ ever, no action under subsection (1) may be commenced 10 years or more after the matter giving rise to the contravention.

Compare: Trade Practices Act 1974 (Aust), s 82 Subsection (2) was substituted, as from 26 May 2001, by section 19 Commerce Amendment Act 2001 (2001 No 32).
See section 26 of that Act as to proceed­ ings barred or commenced before 26 May 2001.

82A Exemplary damages for contravention of Part 2 (1) The Court may order a person who has engaged in any conduct referred to in section 82(1) to pay exemplary damages even though the Court has made, or may make, an order directing the person to pay a pecuniary penalty under section 80 for the same conduct.
In determining whether to award exemplary damages and, if they are to be awarded, the amount of them, the Court must have regard to— (a) whether a pecuniary penalty has been imposed on the defendant for a contravention involving the conduct concerned in the claim for exemplary damages; and if so, the amount of the pecuniary penalty.

(b) Section 82A was inserted, as from 26 May 2001, by section 20 Commerce Amendment Act 2001 (2001 No 32).
See section 26 of that Act as to proceed­ ings barred or commenced before 26 May 2001. Business acquisitions The heading “Business Acquisitions” was substituted for the heading “Mergers and Takeovers”, as from 1 January 1991, by section 29 Commerce Amendment Act 1990 (No 41).
Pecuniary penalties If the Court is satisﬁed on the application of the Commission that a person— (2) 83 (1) 178 Reprinted as at 1 April 2009 Commerce Act 1986 Part 6 s 83 Has contravened section 47 of this Act: (a) (b) Has attempted to contravene that section: (c) Has aided, abetted, counselled, or procured any other person to contravene that section: (e) (d) Has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contra­ vene that section: Has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of that section: Has conspired with any other person to contravene that section,— (f) (2) the Court may order the person to pay to the Crown such pe­ cuniary penalty as the Court determines to be appropriate, not exceeding $500,000 in the case of a person not being a body corporate, or $5,000,000 in the case of a body corporate, in respect of each such act or omission.
In determining an appropriate penalty under this section, the Court shall have regard to all relevant matters, including— The nature and extent of the act or omission: (a) The nature and extent of any loss or damage suffered by (b) any person as a result of the act or omission: The circumstances in which the act or omission took place: (c) (d) Whether or not the person has previously been found by the Court in proceedings under this Part of this Act to have engaged in any similar conduct.
(3) (4) (5) [Repealed] [Repealed] Proceedings under this section may be commenced within 3 years after the matter giving rise to the contravention arose.

(6) A person is not liable to a pecuniary penalty under both section 80 of this Act and this section in respect of the same conduct.

Section 83 was substituted, as from 1 January 1991, by section 29 Commerce Amendment Act 1990 (1990 No 41).
Section 83(3): repealed, on 14 October 2008, by section 12(2)(d) of the Com­ merce Amendment Act 2008 (2008 No 70).

Section 83(4): repealed, on 14 October 2008, by section 12(2)(d) of the Com­ merce Amendment Act 2008 (2008 No 70).
179 Part 6 s 84 Commerce Act 1986 Reprinted as at 1 April 2009 84 Injunctions may be granted by Court for contravention of Part 3 or undertaking (1) Where it appears to the Court, on the application of the Com­ mission, or any other person, that a person intends to engage, or is engaging, or has engaged, in conduct that constitutes or would constitute a contravention of section 47 of this Act, the Court, by order, may do all or any of the following things: (a) Grant an injunction restraining any person from engag­ ing in conduct that constitutes or would constitute— (i) A contravention of section 47 of this Act: (ii) Any attempt to contravene that provision: (iii) Aiding, abetting, counselling, or procuring any other person to contravene that provision: Inducing or attempting to induce any other per­ son, whether by threats, promises or otherwise, to contravene that provision: Being in any way directly or indirectly, know­ ingly concerned in, or party to, the contravention by any other person of that provision: (iv) (v) (b) (c) (vi) Conspiring with any other person to contravene that provision: Impose on any person obligations to be observed in the carrying on of any business or the safeguarding of any business or any assets of any business: Provide for the carrying on of any business or the safe­ guarding of any business or assets of any business, ei­ ther by the appointment of a person to conduct or super­ vise the conduct of any business (on such terms and with such powers as may be speciﬁed or described in the order), or in any other manner, as it thinks neces­ sary in the circumstances of the case.
If it appears to the Court, on the application of the Commis­ sion, that a person intends to engage, or is engaging, or has en­ gaged, in conduct that constitutes or would constitute a contra­ vention of an undertaking accepted under section 69A, the Court, by order, may do all or any of the following things: (a) grant an injunction restraining any person from engag­ ing in conduct that constitutes or would constitute— (i) a contravention of that undertaking: (2) 180 Reprinted as at 1 April 2009 Commerce Act 1986 Part 6 s 84A (ii) (iii) (iv) (v) (vi) any attempt to contravene that undertaking: aiding, abetting, counselling, or procuring any other person to contravene that undertaking: inducing or attempting to induce any other per­ son, whether by threats, promises, or otherwise, to contravene that undertaking: being in any way directly or indirectly, know­ ingly concerned in, or party to, the contravention by any other person of that undertaking: conspiring with any other person to contravene that undertaking: impose on any person obligations to be observed in the carrying on of any business or the safeguarding of any business or any assets of any business: provide for the carrying on of any business or the safeguarding of any business or assets of any business, either by the appointment of a person to conduct or supervise the conduct of any business (on the terms and with the powers as may be speciﬁed or described in the order), or in any other manner, as it thinks necessary in the circumstances of the case.
(b) (c) Compare: 1975 No 113 s 81H; 1976 No 67 s 22; 1983 No 144 s 35 Section 84 heading: amended, on 14 October 2008, by section 13(1) of the Commerce Amendment Act 2008 (2008 No 70).
Section 84 was amended, as from 1 January 1991, by section 30(a) Commerce Amendment Act 1990 (1990 No 41) by substituting the words “or any other person, that a person intends to engage, or is engaging, or has engaged, in con­ duct that constitutes or would constitute a contravention of section 47” for the words “, that a merger or takeover proposal is being, or has been, implemented in contravention of section 50”.
Paragraph (a)(i) was amended, as from 1 January 1991, by section 30(b) Com­ merce Amendment Act 1990 (1990 No 41) by substituting the number “47” for the number “50”.

Section 84(2): added, on 14 October 2008, by section 13(2) of the Commerce Amendment Act 2008 (2008 No 70).
84A Actions for damages for contravention of Part 3 (1) Every person is liable in damages for any loss or damage caused by that person engaging in conduct that constitutes any of the following: (a) A contravention of section 47 of this Act: 181 Part 6 s 85 Commerce Act 1986 Reprinted as at 1 April 2009 (b) Aiding, abetting, counselling, or procuring the contra­ (c) (d) (e) vention of that section: Inducing by threats, promises, or otherwise the contra­ vention of that section: Being in any way directly or indirectly, knowingly con­ cerned in, or party to, the contravention of that section: Conspiring with any other person in the contravention of that section: (2) An action under subsection (1) of this section may be com­ menced at any time within 3 years from the time when the cause of action arose.
Section 84A was inserted, as from 1 January 1991, by section 31 Commerce Amendment Act 1990 (1990 No 41).
85 (1) Court may order divestiture of assets or shares in respect of contravention of Part 3 In any case where the Court, on the application of the Com­ mission, is satisﬁed that any person— (a) (b) Has been found in any other proceedings under this Part of this Act to have contravened section 47 of this Act,— Has contravened section 47 of this Act; or it may, by order,— (c) Give directions for the disposal by that person of such assets or shares as shall be speciﬁed in the order; or (d) Give directions for the disposal by that person of any as­ sets or shares in accordance with an undertaking given by the person under section 69A of this Act.
(2) An application under subsection (1) of this section may be made at any time within 2 years from the date on which the contravention occurred.

Section 85 was substituted, as from 1 January 1991, by section 32 Commerce Amendment Act 1990 (1990 No 41).
85A Pecuniary penalties for contravention of undertaking (1) The Court may, on the application of the Commission, order a person to pay a pecuniary penalty to the Crown if the Court is satisﬁed that the person— (a) has contravened an undertaking accepted under section 69A; or 182 Reprinted as at 1 April 2009 Commerce Act 1986 Part 6 s 85A (f) (e) (c) (d) (b) has attempted to contravene an undertaking accepted under section 69A; or has aided, abetted, counselled, or procured any other person to contravene an undertaking accepted under section 69A; or has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contra­ vene an undertaking accepted under section 69A; or has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of an undertaking accepted under section 69A; or has conspired with any other person to contravene an undertaking accepted under section 69A.
(2) However, the Court may only make an order under subsection (1) if the acquisition to which the undertaking relates has pro­ ceeded.

The amount of pecuniary penalty must not, in respect of each act or omission, exceed $500,000.
In setting the amount of pecuniary penalty, the Court must take into account all of the following matters: (a) (b) the nature and extent of the contravention: the circumstances in which the contravention took place: whether the person has obstructed or hindered the Com­ mission in any attempt of the Commission to obtain compliance with the undertaking: (4) (3) (c) (d) whether the person has taken any steps with the inten­ tion of— (i) (ii) impeding the disposal of assets or shares in ac­ cordance with the undertaking; or limiting the effectiveness of the undertaking in preventing a substantial lessening of competition in a market: (e) whether the person or an interconnected body corporate has previously been found by the Court in proceedings under this Part to have engaged in similar conduct.
(5) Subsection (4) is subject to section 85C.

183 Part 6 s 85B Commerce Act 1986 Reprinted as at 1 April 2009 (6) A person may not be liable to more than 1 pecuniary penalty in respect of the same conduct.

(7) An application under this section may be made at any time within 12 months from the date on which the relevant obliga­ tion under the undertaking was required to be met.

Section 85A: inserted, on 14 October 2008, by section 14(1) of the Commerce Amendment Act 2008 (2008 No 70).
85B Court may order divestiture of assets or shares in respect (1) of contravention of undertaking If the Court, on the application of the Commission, is satis­ ﬁed that any person has contravened an undertaking accepted under section 69A and the acquisition to which the undertak­ ing relates has proceeded, the Court may, by order, give direc­ tions for the disposal by that person of any assets or shares in accordance with the undertaking.
(2) An application under this section may be made at any time within 12 months from the date on which the relevant obliga­ tion under the undertaking was required to be met.

Section 85B: inserted, on 14 October 2008, by section 14(1) of the Commerce Amendment Act 2008 (2008 No 70).
85C Matters Court must not take into account under sections 85A and 85B For the purposes of sections 85A and 85B, the Court must not take into account any of the following: (a) whether it was appropriate for the Commission to ac­ cept the undertaking under section 69A: (b) whether the undertaking under section 69A is still ne­ (c) (d) cessary or desirable: whether any of the terms of the undertaking under sec­ tion 69A are still necessary or desirable: the extent to which the contravention of the undertaking under section 69A may have lessened competition in a market.
Section 85C: inserted, on 14 October 2008, by section 14(1) of the Commerce Amendment Act 2008 (2008 No 70).

184 Reprinted as at 1 April 2009 Commerce Act 1986 Part 6 s 86 Regulated goods or services Heading: substituted, on 14 October 2008, by section 15 of the Commerce Amendment Act 2008 (2008 No 70).
86 (1) (2) (3) (4) Pecuniary penalty for contravening information disclosure requirement The Court may, on application by the Commission, order any person to pay a pecuniary penalty to the Crown if the Court is satisﬁed that the person— (a) has contravened any information disclosure require­ ment (as deﬁned in section 52C); or has attempted to contravene any such requirement; or has aided, abetted, counselled, or procured any other person to contravene any such requirement; or has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contra­ vene any such requirement; or has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of any such requirement; or has conspired with any other person to contravene any such requirement.
(b) (c) (d) (e) (f) In subsection (1) and section 86B, a reference to contravening an information disclosure requirement includes all or any of the following: (a) (b) failing to disclose information required to be disclosed: failing to disclose information in the form or within the time required: disclosing information under an information disclosure requirement that is false or misleading.
(c) The amount of pecuniary penalty must not, in respect of each act or omission, exceed $500,000 in the case of an individual, or $5,000,000 in the case of a body corporate.
In determining the amount of pecuniary penalty, the Court must have regard to all relevant matters, including— the nature and extent of the contravention; and (a) the circumstances in which the contravention took place (b) (including whether the contravention was intentional, inadvertent, or caused by negligence); and 185 Part 6 s 86A Commerce Act 1986 Reprinted as at 1 April 2009 (c) whether the person has previously been found by the Court in proceedings under this Part to have engaged in similar conduct.
(5) A supplier may not be liable to more than 1 pecuniary penalty (6) in respect of the same conduct.

Proceedings under this section may be commenced at any time within 3 years after the contravention occurred.

Section 86: substituted, on 14 October 2008, by section 15 of the Commerce Amendment Act 2008 (2008 No 70).

Subsection (1)(a) was amended, as from 26 May 2001, by section 21(a) Com­ merce Amendment Act 2001 (2001 No 32) by substituting the expression “$50,000” for the expression “$10,000”.
See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

Subsection (1)(b) was amended, as from 26 May 2001, by section 21(b) Com­ merce Amendment Act 2001 (2001 No 32) by substituting the expression “$500,000” for the expression “$30,000”.

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
Subsection (2) was amended, as from 26 May 2001, by section 27(1) Com­ merce Amendment Act 2001 (2001 No 32) by substituting the words “the price that should have been charged for those goods or services in accordance with the authorisation, provisional authorisation, or undertaking” for the words “the authorised price for those goods or services”.

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
86A Order requiring information disclosure requirement to (1) be complied with The Court may, on application by the Commission, order a supplier of regulated goods or services to comply with an in­ formation disclosure requirement that applies to the supplier.

(2) An order under this section must specify the date by which, or period within which, the supplier must comply with the re­ quirement.

Section 86A: inserted, on 14 October 2008, by section 15 of the Commerce Amendment Act 2008 (2008 No 70).
86B Offences relating to information disclosure regulation (1) A person commits an offence if— (a) the person, knowing that particular goods or services are subject to information disclosure regulation, in­ tentionally contravenes any information disclosure requirement relating to those goods or services; or 186 Reprinted as at 1 April 2009 Commerce Act 1986 Part 6 s 86C (b) the person is subject to an order under section 86A and fails to comply with the order by the date, or within the period, speciﬁed.
(2) A person who commits an offence under subsection (1) is li­ able on summary conviction to a ﬁne not exceeding $200,000 in the case of an individual, or $1,000,000 in the case of a body corporate.

(3) Despite section 14 of the Summary Proceedings Act 1957, pro­ ceedings for an offence under subsection (1)(a) may be com­ menced at any time within 3 years after the contravention oc­ curred.

Section 86B: inserted, on 14 October 2008, by section 15 of the Commerce Amendment Act 2008 (2008 No 70).
86C Orders where negotiate/arbitrate regulation applies (1) The Court may, on the application of a party (party A) to ne­ gotiation or arbitration in respect of goods or services that are subject to negotiate/arbitrate regulation, make either or both of the following orders: (a) an order requiring another party to the negotiation or ar­ bitration (party B) to comply with the relevant section 52P determination in the manner speciﬁed by the Court: an order requiring party B to pay party A an amount to compensate party A for loss or damage suffered as a result of party B failing to co­operate, or inadequately co­operating with, the negotiation or arbitration.
(b) (3) (2) Any application for an order under subsection (1)(b) must be made within 1 year after the date on which the failure to co­op­ erate, or inadequate co­operation, occurred.
In setting an amount under subsection (1)(b), the Court must have regard to all relevant factors, including— (a) (b) the nature and extent of the failure to co­operate; and the extent to which the failure was the result of factors outside the control of party B; and whether party B has previously been ordered to pay compensation for a similar failure in proceedings under this section.

(c) Section 86C: inserted, on 14 October 2008, by section 15 of the Commerce Amendment Act 2008 (2008 No 70).
187 Part 6 s 87 Commerce Act 1986 Reprinted as at 1 April 2009 Pecuniary penalty for contravening price­quality requirements The Court may, on application by the Commission, order a person to pay a pecuniary penalty to the Crown if the Court is satisﬁed that the person— (a) has contravened any price­quality requirement applying to the regulated goods or services; or has attempted to contravene any such requirement; or has aided, abetted, counselled, or procured any other person to contravene any such requirement; or has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contra­ vene any such requirement; or has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of any such requirement; or has conspired with any other person to contravene any such requirement.
(b) (c) (d) (e) (f) In subsection (1) and sections 87A to 87C, a reference to contravening a price­quality requirement— (a) refers to a requirement imposed by a determination made under section 52P in relation to goods or services to default/customised price­quality that are subject regulation or to individual price­quality regulation imposed under Part 4; and (b) means either or both of the following: (i) (ii) failing to comply with the requirements for prices, whether by charging a price for the goods or services that is higher than the maximum price permitted, or by receiving more revenue than is permitted, or in any other way: refusing or failing to comply with any quality standards required under the price­quality regu­ lation.
The amount of pecuniary penalty must not, in respect of each act or omission, exceed $500,000 in the case of an individual, or $5,000,000 in the case of a body corporate.
In setting the amount of pecuniary penalty, the Court must take into account all of the following matters: 87 (1) (2) (3) (4) 188 Reprinted as at 1 April 2009 Commerce Act 1986 Part 6 s 87A (a) (b) (c) the nature and extent of the contravention: the nature and extent of any loss or damage suffered by any person as a result of the contravention: the circumstances in which the contravention took place (including whether the contravention was intentional, inadvertent, or caused by negligence): (d) whether or not the person has previously been found by the Court in proceedings under this Part to have engaged in similar conduct.
(5) A supplier may not be liable to more than 1 pecuniary penalty (6) in respect of the same conduct.

Proceedings under this section may be commenced at any time within 3 years after the contravention occurred.

Section 87: substituted, on 14 October 2008, by section 15 of the Commerce Amendment Act 2008 (2008 No 70).

Paragraph (b)(ii) was substituted, as from 26 May 2001, by section 27(2) Com­ merce Amendment Act 2001 (2001 No 32).
See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

87A Compensation for contravention of price­quality (1) requirement If the Court orders a person to pay a pecuniary penalty under section 87 in respect of the contravention of a price­quality requirement, the Court may, in addition, order the person to pay compensation to any person who has suffered, or is likely to suffer, loss or damage as a result of the contravention (an aggrieved person).
(2) An application for orders under this section may be made by (3) (4) (5) the Commission or any aggrieved person.

The application must be made within 1 year of the date of the pecuniary penalty order.

The Court may make an order under this section whether or not any aggrieved person is party to the proceedings.

In proceedings under this section, the Court may make such orders as to cost as it thinks ﬁt.
Section 87A: inserted, on 14 October 2008, by section 15 of the Commerce Amendment Act 2008 (2008 No 70).
189 Part 6 s 87B Commerce Act 1986 Reprinted as at 1 April 2009 87B Offence relating to price­quality regulation (1) A person commits an offence if— (a) (b) the person, knowing that particular goods or services are subject to price­quality regulation, intentionally contravenes a price­quality requirement in respect of the goods or services; or the person is subject 87C(1)(b) and fails to comply with the order.
to an order under section (2) A person who commits an offence under subsection (1) is li­ able on summary conviction to a ﬁne not exceeding $200,000 in the case of an individual, or $1,000,000 in the case of a body corporate.

(3) Despite section 14 of the Summary Proceedings Act 1957, pro­ ceedings for an offence under subsection (1)(a) may be com­ menced at any time within 3 years after the contravention oc­ curred.
Section 87B: inserted, on 14 October 2008, by section 15 of the Commerce Amendment Act 2008 (2008 No 70).
87C Injunction and other orders relating to price­quality (1) regulation If the Court is satisﬁed that goods or services that are subject to price­quality regulation are being supplied, or are likely to be supplied, in contravention of any price­quality requirement applying with respect to those goods or services, the Court may do either or both of the following: (a) grant an injunction restraining any supplier of those goods or services from supplying them in contravention of the price­quality requirement: requiring the supplier to supply the goods or services in accordance with the price­quality requirement applying to them.
(b) (2) An application for an order under this section may be made by any person.

Section 87C: inserted, on 14 October 2008, by section 15 of the Commerce Amendment Act 2008 (2008 No 70).

190 Reprinted as at 1 April 2009 Commerce Act 1986 Part 6 s 88 Injunctions generally 88 (1) General provisions relating to granting of injunctions The Court may at any time rescind or vary an injunction granted under this Part of this Act.
(2) Where an application is made to the Court under this Part of this Act for the grant of an injunction restraining a person from engaging in conduct of a particular kind the Court may,— (a) If it is satisﬁed that the person has engaged in conduct of that kind, grant an injunction restraining the person from engaging in conduct of that kind; or If in the opinion of the Court it is desirable to do so, grant an interim injunction restraining the person from engaging in conduct of that kind,— (b) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind.
(3) Where an application is made to the Court under this Part of this Act for the grant of an injunction restraining a person from engaging in conduct of a particular kind, the Court may,— (a) If it appears to the Court that, in the event that an in­ junction is not granted, it is likely that the person will engage in conduct of that kind, grant an injunction re­ straining the person from engaging in conduct of that kind; or If in the opinion of the Court it is desirable to do so, grant an interim injunction restraining the person from engaging in conduct of that kind,— (b) whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the ﬁrst­mentioned person engages in conduct of that kind.
In determining whether to grant an interim injunction under this section, the Court must give any weight that the Court considers appropriate to the interests of consumers or, as the case may be, acquirers.

(3A) 191 Part 6 s 88A Commerce Act 1986 Reprinted as at 1 April 2009 (4) In any proceeding under this section, the Commission, upon the order of the Court, may obtain discovery and administer interrogatories.
Compare: Trade Practices Act 1974 (Aust), s 80(3), (4), (5) Subsection (3A) was inserted, as from 2 September 1996, by section 7 Com­ merce Amendment Act 1996 (1996 No 113).

Subsection (3A) was substituted, as from 26 May 2001, by section 22 Com­ merce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
88A When undertaking as to damages not required by (1) Commission If the Commission applies to the Court for the grant of an in­ terim injunction under this Part, the Court must not, as a condi­ tion of granting an interim injunction, require the Commission to give an undertaking as to damages.

(2) However, in determining the Commission’s application for the grant of an interim injunction, the Court must not take into ac­ count that the Commission is not required to give an undertak­ ing as to damages.
Section 88A was inserted, as from 26 May 2001, by section 23 Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceed­ ings barred or commenced before 26 May 2001.
Other orders 89 (1) Where, in any proceedings under this Part of this Act, the Court ﬁnds that a person who is a party to the proceedings has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in contravention of any of the provisions of Part 2 of this Act, the Court may, whether or not it grants an injunction or makes any other order under this Part of this Act, make such order or orders as it thinks appro­ priate against the person who engaged in the conduct, or any other person who in relation to the contravention did any act referred to in section 81(b) to (f) of this Act.
(2) Where a contract is entered into in contravention of this Act, or as the case may be, a contract contains a provision which if given effect to would contravene this Act, the Court may, in any proceedings under this Part of the Act, or on application made for the purpose by a party to the contract or any person 192 Reprinted as at 1 April 2009 Commerce Act 1986 Part 6 s 89 claiming through or under any party to the contract, make an order— (a) Varying the contract, in such manner as it thinks ﬁt, not being a manner inconsistent with the provisions of this Act: Cancelling the contract: Requiring any person who is a party to the contract to make restitution or pay compensation to any other per­ son who is a party to the contract.
(b) (c) (3) Where a covenant is given in contravention of this Act, or as the case may be, the enforcement of the terms of a covenant would contravene this Act, the Court may, in any proceedings under this Part of this Act, or on application made for the pur­ pose by a person who, but for section 28(4) of this Act would be bound by or entitled to the beneﬁt of the covenant or any person claiming through or under any such person, make an order— (a) (b) Varying the covenant, in such manner as it thinks ﬁt, not being a manner inconsistent with the provisions of this Act: Requiring any person who, but for section 28(4) of this Act would be bound by or entitled to the beneﬁt of the covenant to make restitution or pay compensation to any other person who, but for section 28(4) of this Act would be bound by or entitled to the beneﬁt of the covenant.
(4) Nothing in subsection (2) or subsection (3) of this section shall prevent any proceedings being instituted or commenced under this Part of this Act.

(5) Nothing in the Illegal Contracts Act 1970 applies to any con­ tract entered into in contravention of this Act or to any contract which contains a provision the giving effect to of which would constitute a contravention of this Act.
(6) Notwithstanding any enactment or rule of law, where a con­ tract is entered into in contravention of this Act by reason that the contract contains a particular provision, or the contract contains a provision which if given effect to would contravene this Act, the enforceability of any other provision of the con­ tract shall not be affected by the existence of that provision.
193 Part 6 s 90 Commerce Act 1986 Reprinted as at 1 April 2009 (7) In this section, a reference to a contravention of this Act in­ cludes a reference to contravening the requirements of any type of regulation under Part 4.

Compare: Trade Practices Act 1974 (Aust), s 87(1)(a) Section 89(7): added, on 14 October 2008, by section 16 of the Commerce Amendment Act 2008 (2008 No 70).
Conduct by servants or agents 90 (1) Where, in proceedings under this Part of this Act in respect of any conduct engaged in by a body corporate, being conduct in relation to which any of the provisions of this Act applies, it is necessary to establish the state of mind of the body corporate, it is sufﬁcient to show that a director, servant or agent of the body corporate, acting within the scope of his actual or apparent authority, had that state of mind.
(2) Any conduct engaged in on behalf of a body corporate— (a) (b) By a director, servant, or agent of the body corporate, acting within the scope of his actual or apparent author­ ity: or By any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant, or agent of the body corporate, given within the scope of the actual or apparent authority of the director, servant or agent— shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.
(3) Where, in a proceeding under this Part of this Act in respect of any conduct engaged in by a person other than a body cor­ porate, being conduct in relation to which a provision of this Act applies, it is necessary to establish the state of mind of the person, it is sufﬁcient to show that a servant or agent of the person, acting within the scope of his actual or apparent au­ thority, had that state of mind.
(4) Any conduct engaged in on behalf of a person other than a body corporate— (a) By a servant or agent of the person acting within the scope of his actual or apparent authority; or By any other person at the direction or with the consent or agreement (whether express or implied) of a servant (b) 194 Reprinted as at 1 April 2009 Commerce Act 1986 Part 6 s 91 or agent of the ﬁrst­mentioned person, given within the scope of the actual or apparent authority of the servant or agent— shall be deemed, for the purposes of this Act, to have been engaged in also by the ﬁrst­mentioned person.
(5) A reference in this section to the state of mind of a person in­ cludes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person’s reasons for that in­ tention, opinion, belief or purpose.
Compare: Trade Practices Act 1974 (Aust), s 84 Appeals from determinations of commission 91 (1) Appeals in relation to determinations by Commission There is a right of appeal to the High Court under this subsec­ tion against any determination of the Commission under this Act, other than the following: (a) a determination, or any part of a determination, made under section 52P (a section 52P determination) that sets out— (i) how information disclosure regulation or negoti­ ate/arbitrate regulation applies to regulated sup­ pliers; or the default price­quality path that applies to regu­ lated suppliers: (ii) (b) an input methodology determination (as deﬁned in sec­ tion 52Z, and for which a separate appeal right is given under that section).
(1A) An appeal against a section 52P determination may not include an appeal against all or part of an input methodology, whether on a point of law or any other ground.

(2) (1B) There is a right of appeal to the High Court on a question of law against any determination of the Commission under this Act (including a determination referred to in subsection (1)).
Every such appeal shall be made by giving notice of appeal within 20 working days after the date of the determination ap­ pealed against or within such further time as the Court may allow.

Compare: 1975 No 113 s 42 195 Part 6 s 92 Commerce Act 1986 Reprinted as at 1 April 2009 Section 91(1): substituted, on 14 October 2008, by section 17 of the Commerce Amendment Act 2008 (2008 No 70).
The original subsection (1) was amended, as from 15 August 1991, by section 3(4) Judicature Amendment Act 1991 (1991 No 60) by omitting the words “the Administrative Division of”.

Subsection (1) was substituted, as from 26 May 2001, by section 24(1) Com­ merce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

Subsection (1) was substituted, as from 8 August 2001, by section 4(1) Com­ merce Amendment Act 2001 (2001 No 41).
Subsection (1)(a)(iii) was repealed, as from 18 October 2004, by section 10(2) Commerce Amendment Act (No 2) 2004 (2004 No 82).

Subsection (1)(a)(iv) was repealed, as from 18 October 2004, by section 11(5) Commerce Amendment Act (No 2) 2004 (2004 No 82).

Subsection (1)(b)(ii) was repealed, as from 18 October 2004, by section 10(3) Commerce Amendment Act (No 2) 2004 (2004 No 82).

Section 91(1A): inserted, on 14 October 2008, by section 17 of the Commerce Amendment Act 2008 (2008 No 70).
Section 91(1B): inserted, on 14 October 2008, by section 17 of the Commerce Amendment Act 2008 (2008 No 70).
Persons entitled to appeal The following persons may exercise the right of appeal pur­ suant to section 91 of this Act— (a) In the case of an appeal against a determination of the Commission in relation to an application for an author­ isation under section 58 of this Act, the applicant and any person who participated in any conference held by the Commission under section 62 of this Act in relation to the authorisation: In the case of an appeal against a determination of the Commission revoking or amending an authorisation pursuant to section 65(1) of this Act or revoking an authorisation and substituting a further authorisation pursuant to that subsection, the person to whom the authorisation was granted: In the case of an appeal against a determination of the Commission under section 66 or section 67 of this Act in relation to a notice seeking a clearance or an author­ isation, as the case may be,— (i) The person who sought the clearance or the au­ thorisation; and (b) (c) 92 196 Reprinted as at 1 April 2009 Commerce Act 1986 Part 6 s 93 (ii) Any person whose assets, or the shares in which, are proposed to be acquired pursuant to the clear­ ance or authorisation; and (iii) Any person who participated in any conference held by the Commission under section 69B of this Act in relation to the clearance or authorisa­ tion: in the case of an appeal against a determination made under section 52P, any supplier or consumer (as deﬁned in section 52C) of goods or services to which the deter­ mination relates: [Repealed] in the case of an appeal against a determination of a Commissioner under section 74A, any person against whom a cease and desist order was made.
(d) (e) (f) Paragraph (c) was substituted, as from 1 January 1991, by section 33 Commerce Amendment Act 1990 (1990 No 41).

Section 92(d): substituted, on 14 October 2008, by section 18 of the Commerce Amendment Act 2008 (2008 No 70).

Section 92(e): repealed, on 14 October 2008, by section 18 of the Commerce Amendment Act 2008 (2008 No 70).

Paragraph (f) was inserted, as from 1 April 2002, by section 15(2) Commerce Amendment Act 2001 (2001 No 32).
See section 26 of that Act as to pro­ ceedings barred or commenced before 26 May 2001.

See clause 2 Commerce Amendment Act 2001 Commencement Order 2002 (SR 2002/64).

93 Determination of appeals In determining an appeal under section 91(1), the Court may do any of the following: (a) Conﬁrm, modify, or reverse the determination or any part of it: Exercise any of the powers that could have been ex­ ercised by the Commission in relation to the matter to which the appeal relates.
(b) Compare: 1975 No 113 s 45(3), (4) Section 93: amended, on 14 October 2008, by section 19 of the Commerce Amendment Act 2008 (2008 No 70).

Section 93 was amended, as from 26 May 2001, by section 24(2) Commerce Amendment Act 2001 (2001 No 32) by inserting, after the word “appeal” in the ﬁrst place where it appears, the words “(other than an appeal under section 91(1)(b))”.

See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
197 Part 6 s 94 Commerce Act 1986 Reprinted as at 1 April 2009 Court may refer appeals back for reconsideration 94 (1) Notwithstanding anything in section 93 of this Act, the Court may, in any case, instead of determining any appeal under that section, direct the Commission to reconsider, either generally or in respect of any speciﬁed matters, the whole or any speci­ ﬁed part of the matter to which the appeal relates.
In giving any direction under this section, the Court shall— Advise the Commission of its reasons for doing so; and (a) (b) Give to the Commission such directions as it thinks just concerning the reconsideration or otherwise of the whole or any part of the matter that is referred back for reconsideration.
(2) (3) In reconsidering the matter so referred back, the Commission shall have regard to the Court’s reasons for giving a direction under subsection (1) of this section, and the Court’s directions under subsection (2) of this section.
Compare: 1975 No 113 s 46 Provisions pending determination of appeal 95 (1) Where an appeal is brought under any provision of this Part of this Act against any determination of the Commission, the determination to which the appeal relates shall remain in full force pending the determination of the appeal, unless the Court orders to the contrary.
(2) However, the Court may not stay the application of a determin­ ation made under section 52P in respect of which an appeal is brought under section 91(1) or (1B).

Compare: 1975 No 113 s 47; 1979 No 140 s 21 Section 95(2): added, on 14 October 2008, by section 20 of the Commerce Amendment Act 2008 (2008 No 70).

Court may order proceedings to be heard in private The Court may, in its discretion, order that the hearing or any part of the hearing of any proceedings under this Act shall be held in private.
The Court may make an order prohibiting the publication of any report or description of proceedings or any part of pro­ ceedings under this Act (whether heard in public or in private); 96 (1) (2) 198 Reprinted as at 1 April 2009 Commerce Act 1986 Part 6 s 97 but no order under this subsection shall prohibit the publica­ tion of any determination of the Court.
Compare: 1975 No 113 s 45(1), (2) Appeal to Court of Appeal in certain cases 97 (1) Notwithstanding anything in any enactment, any party to any appeal before the High Court against any determination of the Commission who is dissatisﬁed with any decision or order of the Court may, with the leave of the Court or of the Court of Appeal, appeal to the Court of Appeal; and section 66 of the Judicature Act 1908 shall apply to any such appeal.
In determining whether to grant leave to appeal under this sec­ tion, the Court to which the application for leave is made shall have regard to the following matters: (a) Whether any question of law or general principle is in­ (2) (b) (c) (d) volved: The importance of the issues to the parties: The amount of money in issue: Such other matters as in the particular circumstances the Court thinks ﬁt.
(3) The Court granting leave under this section may in its discre­ tion impose such conditions as it thinks ﬁt, whether as to costs or otherwise.

(4) (5) An appeal to the Court of Appeal under this section may be made against either of the following only on a point of law: (a) (b) a decision or order of the High Court under section 52Z: a decision or order of the High Court on an appeal under section 91(1) or (1B) against a determination of the Commission made under section 52P.
Subsection (1) was amended, as from 15 August 1991, by section 3(4) Judica­ ture Amendment Act 1991 (1991 No 60) by omitting the words “the Adminis­ trative Division of”.

Subsection (4) was repealed, as from 1 January 2004, by section 48(1) Supreme Court Act 2003 (2003 No 53).

See sections 50 to 55 of that Act for the transi­ tional and savings provisions.

Section 97(5): added, on 14 October 2008, by section 21 of the Commerce Amendment Act 2008 (2008 No 70).
199 Part 7 s 98 Commerce Act 1986 Reprinted as at 1 April 2009 Part 7 Miscellaneous provisions 98 Commission may require person to supply information or documents or give evidence Where the Commission considers it necessary or desirable for the purposes of carrying out its functions and exercising its powers under this Act, the Commission may, by notice in writ­ ing served on any person, require that person— (a) To furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a director or competent servant or agent of the body corporate, within the time and in the manner speciﬁed in the notice, any information or class of information speciﬁed in the notice; or To produce to the Commission, or to a person speciﬁed in the notice acting on its behalf in accordance with the notice, any document or class of documents speciﬁed in the notice; or To appear before the Commission at a time and place speciﬁed in the notice to give evidence, either orally or in writing, and produce any document or class of documents speciﬁed in the notice.
(b) (c) Section 98 was substituted, and sections 98A to 98H were inserted, as from 1 July 1990, by section 34 Commerce Amendment Act 1990 (1990 No 41).
98A Power to search (1) The Commission may, from time to time, authorise an em­ ployee of the Commission to search under a warrant issued under subsection (2) of this section any place named in the warrant for the purpose of ascertaining whether a person has engaged in or is engaging in conduct that constitutes or may constitute a contravention of this Act, not being a contraven­ tion of section 99A of this Act.
(2) A District Court Judge, Justice, or Community Magistrate, or a Court Registrar (not being a constable) who is satisﬁed on application made on oath by a person who is authorised under subsection (1) of this section that there are reasonable grounds to believe that it is necessary for the purpose of ascertaining whether or not a person has engaged in or is engaging in con­ 200 Reprinted as at 1 April 2009 Commerce Act 1986 Part 7 s 98B duct that constitutes or may constitute a contravention of this Act, not being a contravention of section 99A of this Act, for an employee of the Commission to search any place may, by warrant, authorise that employee to search a place speciﬁed in the warrant.
(3) A person who applies for a warrant shall, having made reason­ able inquiries, disclose— (a) Details of every previous application for a warrant to search the place that the person knows has been made within the preceding 28 days; and The result of the application.

(b) In this section, a reference to a contravention of this Act in­ cludes a reference to contravening the requirements of any type of regulation under Part 4.
Section 98 was substituted, and sections 98A to 98H were inserted, as from 1 July 1990, by section 34 Commerce Amendment Act 1990 (1990 No 41).

(4) Subsection (2) was amended, as from 30 June 1998, by section 7 District Courts Amendment Act 1998 (1998 No 76), by substituting the words “, Justice, or Community Magistrate” for the words “or Justice”.

Section 98A(4): added, on 14 October 2008, by section 22 of the Commerce Amendment Act 2008 (2008 No 70).
98B Powers conferred by warrant (1) A warrant issued under section 98A of this Act authorises the person named in it— (a) To enter and search the place speciﬁed in the warrant on one occasion within 30 days of the date of issue of the warrant at a time that is reasonable in the circumstances: To use such assistance as is reasonable in the circum­ stances: To use such force for gaining entry and for breaking open any article or thing as is reasonable in the circum­ stances: To search for and remove documents or any article or thing that the person executing the warrant believes on reasonable grounds may be relevant: (b) (c) (d) (e) Where necessary, to take copies of documents, or ex­ tracts from documents, that the person executing the warrant believes on reasonable grounds may be rele­ vant: 201 Part 7 s 98C Commerce Act 1986 Reprinted as at 1 April 2009 (f) Where necessary, to require a person to reproduce, or assist any person executing the warrant to reproduce, in usable form, information recorded or stored in a docu­ ment.
(3) (2) A person assisting the person executing the warrant also has the powers referred to in paragraphs (c), (d), and (e) of sub­ section (1) of this section.

The warrant shall be executed in accordance with such reason­ able conditions as may be speciﬁed in the warrant when it is issued.

Section 98 was substituted, and sections 98A to 98H were inserted, as from 1 July 1990, by section 34 Commerce Amendment Act 1990 (1990 No 41).
98C Warrant to be produced A person executing a warrant issued under section 98A of this Act— (a) Must have the warrant with him or her; and (b) Must produce it on initial entry and, if requested, at any subsequent time; and (c) Must identify himself or herself to the owner or occu­ pier or person in charge of the place if that person is present; and (d) Must produce evidence of his or her identity.
Section 98 was substituted, and sections 98Ato 98H were inserted, as from 1 July 1990, by section 34 Commerce Amendment Act 1990 (1990 No 41).
98D Other duties of person who executes a warrant (1) A person who executes a warrant issued under section 98A of this Act must, before completing the search, leave in a promi­ nent place at the place searched,— (a) In the case of a search carried out at a time when the owner or occupier was not present, a written notice stat­ ing,— (i) The date and time when the warrant was exe­ cuted; and The name of the person who executed the war­ rant; and (ii) (b) In the case of a search where a document or article or thing was removed from the place being searched, a 202 Reprinted as at 1 April 2009 Commerce Act 1986 Part 7 s 98F (2) (3) schedule of documents or articles or things that were removed during the search.
If it is not practicable to prepare a schedule before complet­ ing the search, or if the owner or occupier of the place being searched consents, the person executing the warrant— (a) May, instead of leaving a schedule, leave a notice stat­ ing that documents, or articles, or things have been re­ moved during the search and that, within 7 days of the search, a schedule will be delivered, left, or sent stating what documents, articles, or things have been removed; and (b) Must, within 7 days of the search,— (i) (ii) Deliver a schedule to the owner or occupier; or Leave a schedule in a prominent position at the place searched; or (iii) Send a schedule by mail to the owner or occupier of the place searched.
Every schedule must state— (a) The documents, articles, and things that have been re­ moved; and The location from where they were removed; and The location where they are being held.

(b) (c) Section 98 was substituted, and sections 98A to 98H were inserted, as from 1 July 1990, by section 34 Commerce Amendment Act 1990 (1990 No 41).
98E Duty to assist The occupier or person in charge of the place that a person au­ thorised pursuant to a warrant issued under section 98A of this Act enters for the purpose of searching must provide that per­ son with all reasonable facilities and assistance in executing the warrant.

Section 98 was substituted, and sections 98A to 98H were inserted, as from 1 July 1990, by section 34 Commerce Amendment Act 1990 (1990 No 41).
98F Power to inspect and take copies of documents, etc The Commission, or any person authorised by the Commission for the purpose, may inspect and take copies of any documents or extracts from them obtained pursuant to a warrant issued under section 98A of this Act.

203 Part 7 s 98G Commerce Act 1986 Reprinted as at 1 April 2009 Section 98 was substituted, and sections 98A to 98H were inserted, as from 1 July 1990, by section 34 Commerce Amendment Act 1990 (1990 No 41).
98G Commission may exercise powers notwithstanding other proceedings The Commission may exercise any power under sections 98 to 98F of this Act notwithstanding that any proceedings, whether under Part 6 of this Act or otherwise, have been instituted in any Court.

Section 98 was substituted, and sections 98A to 98H were inserted, as from 1 July 1990, by section 34 Commerce Amendment Act 1990 (1990 No 41).
98H Supply of information and documents in relation to section 36A (1) Where the Commission considers it necessary or desirable for the purposes of carrying out its functions and exercising its powers under this Act in relation to section 36A of this Act, the Commission may by notice in writing served on any per­ son who is ordinarily resident in Australia or who carries on business in Australia, require that person— (a) To furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a director or competent servant or agent of the body corporate, within the time and in the manner speciﬁed in the notice, any information or class of information speciﬁed in the notice; or To produce to the Commission, or to a person speciﬁed in the notice acting on its behalf in accordance with the notice, any document or class of documents speciﬁed in the notice.
(b) (2) A person who is required to furnish information or a class of information or produce any document or class of documents to the Commission pursuant to this section complies with this section if that person furnishes the information or that class of information or produces the document or that class of docu­ ments to the Australian Competition and Consumer Commis­ sion in accordance with the Trade Practices Act 1974.
Section 98 was substituted, and sections 98A to 98H were inserted, as from 1 July 1990, by section 34 Commerce Amendment Act 1990 (1990 No 41).

204 Reprinted as at 1 April 2009 Commerce Act 1986 Part 7 s 99 Subsection (2) was amended, as from 2 September 1996, by section 8 Com­ merce Amendment Act 1996 (1996 No 113) by substituting the words “Aus­ tralian Competition and Consumer Commission” for the words “Australian Trade Practices Commission”.
99 (1) (2) (3) (4) Powers of Commission to take evidence For the purposes of carrying out its functions and exercising its powers under this Act, the Commission may receive in evi­ dence any statement, document, information, or matter that may in its opinion assist it to deal effectively with the matter before it, whether or not the same would be otherwise admis­ sible in a Court of law.
The Commission may take evidence on oath and for that pur­ pose a member of the Commission or any employee of the Commission duly appointed for the purpose may administer an oath.

The Commission may require the evidence referred to in sec­ tion 98(c) of this Act to be given on oath, and for that purpose a member of the Commission or any employee of the Commis­ sion duly appointed for the purpose may administer an oath.
The Commission may permit a person appearing as a witness before the Commission to give evidence by tendering and, if the Commission thinks ﬁt, verifying by oath, a written state­ ment.
(5) Where any person has appeared as a witness before the Com­ mission pursuant to a notice in that behalf, or has given evi­ dence before the Commission, whether pursuant to a notice or not, the Commission may, if it thinks ﬁt, order any sum to be paid to that witness on account of his expenses, not exceeding the amount that would be payable to him if his attendance had been as a witness for the Crown in a criminal case in accord­ ance with the regulations for the time being in force for the payment of witnesses for the Crown in criminal cases.
Compare: 1975 No 113 s 13; 1976 No 67 s 8(8)(d) Subsection (2) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the words “employee of the Commission” for the words “ofﬁcer of the Commission”.

Subsection (3) was amended, as from 1 July 1990, by section 35 Commerce Amendment Act 1990 (1990 No 41) by substituting the expression “98(c)” for the expression “98(1)(c)”.
205 Part 7 s 99A Commerce Act 1986 Reprinted as at 1 April 2009 Subsection (3) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the words “employee of the Commission” for the words “ofﬁcer of the Commission”.
99A Commission may receive information and documents on behalf of Australian Trade Practices Commission (1) Where the Australian Competition and Consumer Commis­ sion requires any person resident or carrying on business in New Zealand to furnish any information or any class of in­ formation or produce any document or class of documents to it pursuant to section 155A of the Trade Practices Act 1974, the information or class of information may be furnished or the document or class of documents may be produced to the Commission for transmission to the Australian Competition and Consumer Commission.
The Commission shall deliver the information or class of in­ formation furnished or the document or class of documents produced to it to the Australian Competition and Consumer Commission as soon as practicable.
Every person who— (a) (2) (3) Refuses or fails, without reasonable excuse, to comply with a requirement referred to in subsection (1) of this section; or In purported compliance with such a requirement, fur­ nishes information or produces a document knowing it to be false or misleading— (b) commits an offence and is liable on summary conviction to a ﬁne not exceeding $10,000 in the case of an individual, or $30,000 in the case of a body corporate.
Section 99A was inserted, as from 1 July 1990, by section 36 Commerce Amendment Act 1990 (1990 No 41).

Subsections (1) and (2) were amended, as from 2 September 1996, by section 9 Commerce Amendment Act 1996 (1996 No 113) by substituting the words “Australian Competition and Consumer Commission” for the words “Aus­ tralian Trade Practices Commission”.
100 Powers of Commission to prohibit disclosure of information, documents, and evidence Subject to subsection (2) of this section, the Commission may, in relation to any application for, or any notice seeking, any (1) 206 Reprinted as at 1 April 2009 Commerce Act 1986 Part 7 s 100 clearance or authorisation under Part 5 of this Act, or in the course of carrying out any other investigation or inquiry under this Act, make an order prohibiting— (a) The publication or communication of any information or document or evidence which is furnished or given or tendered to, or obtained by, the Commission in connec­ tion with the operations of the Commission: The giving of any evidence involving any such infor­ mation, document, or evidence.
(b) (2) Any order made by the Commission under subsection (1) of this section may be expressed to have effect for such period as is speciﬁed in the order, but no such order shall have effect,— (a) Where that order was made in connection with any ap­ plication for, or any notice seeking, any clearance or au­ thorisation under Part 5 of this Act, after the expiry of 20 working days from the date on which the Commis­ sion makes a ﬁnal determination in respect of that ap­ plication or notice, or, where that application or notice is withdrawn before any such determination is made, after the date on which the application or notice is with­ drawn: (b) Where that order was made in connection with any other investigation or inquiry conducted by the Commission, after the conclusion of that investigation or inquiry.
(4) (3) On the expiry of any order made under subsection (1) of this section, the provisions of the Ofﬁcial Information Act 1982 shall apply in respect of any information, document, or evidence that was the subject of that order.
Every person who, contrary to any order made by the Com­ mission under subsection (1) of this section, publishes or com­ municates any information or document or evidence commits an offence and is liable, on summary conviction, to a ﬁne not exceeding $4,000 in the case of a person not being a body cor­ porate, and $12,000 in the case of a body corporate.

Section 100 was substituted, as from 1 April 1987, by section 25(1) Ofﬁcial Information Amendment Act 1987 (1987 No 8).
207 Part 7 s 100A Commerce Act 1986 Reprinted as at 1 April 2009 100A Commission may state case for opinion of High Court (1) The Commission may at any time state a case for the opinion of the Court on any question of law arising in any matter before it.

The Court may order the removal into the Court of Appeal of any case stated for the opinion of the Court under this section.
The Court or the Court of Appeal, as the case may be, shall hear and determine the question, and shall remit the case with its opinion to the Commission.

Section 100A was inserted, as from 2 September 1996, by section 10 Commerce Amendment Act 1996 (1996 No 113).
(2) (3) 101 Notices (1) Any notice given by the Commission under or for the purposes of this Act shall be sufﬁciently given if it is in writing under the seal of the Commission or is signed by the chairperson, or by one or more of the members of the Commission, or by any person purporting to act by direction of the Commission, and is served in accordance with section 102 of this Act on the person or persons primarily concerned therewith or on any person or organisation deemed by the Commission to represent the person or persons primarily concerned therewith.
(2) All documents purporting to be signed by or on behalf of the Commission or to be sealed with the seal of the Commission shall, in all courts and in all proceedings under this Act, be deemed to have been so signed or sealed with due authority unless the contrary is proved.

Compare: 1975 No 113 s 120A; 1976 No 67 s 37(1) Subsection (1) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the word “chairperson” for the word “Chairman”.
102 Service of notices (1) Any notice or other document required or authorised to be served on or given to any person for the purposes of this Act may be served or given by delivering it to that person, or by leaving it at his usual or last known place of residence or busi­ ness or at the address speciﬁed by him in any notice, applica­ tion, or other document made or given or tendered to the Com­ 208 Reprinted as at 1 April 2009 Commerce Act 1986 Part 7 s 103 (2) mission under this Act, or by posting it by letter addressed to him at that place of residence or business or at that address.
If any such notice or other document is sent to any person by registered letter, then, unless the contrary is shown, it shall be deemed to have been delivered to him when it would have been delivered in the ordinary course of post; and in proving the delivery it shall be sufﬁcient to prove that the letter was properly addressed and posted.
(3) Where for any purpose under this Act a notice or document is required to be served on an association or body of persons the notice or document may be served on the secretary, executive ofﬁcer, manager, or other ofﬁcer holding a similar position in the association or body; and for the purposes of this Act, ser­ vice on the association or body shall, unless otherwise directed by the Commission, be deemed to be service on all persons who are members of the association or body or who are repre­ sented on the association or body by those members.
Compare: 1975 No 113 s 121(1)­(3) 103 Offences (1) No person shall— (b) (a) Without reasonable excuse, refuse or fail to comply with a notice under sections 53B(1)(c), 53N, 53ZD, and 98 of this Act; or In purported compliance with such a notice, furnish in­ formation, or produce a document, or give evidence, knowing it to be false or misleading; or Resist, obstruct, or delay an employee of the Commis­ sion acting pursuant to a warrant issued under section 98A of this Act.
(c) (2) No person shall attempt to deceive or knowingly mislead the Commission in relation to any matter before it.
(3) No person, having been required to appear before the Com­ mission pursuant to section 98(c) of this Act, shall— (a) Without reasonable excuse, refuse or fail to appear be­ fore the Commission to give evidence; or Refuse to take an oath or make an afﬁrmation as a wit­ ness; or Refuse to answer any question; or (b) (c) 209 Part 7 s 104 Commerce Act 1986 Reprinted as at 1 April 2009 (d) Refuse to produce to the Commission any book or docu­ ment that that person is required to produce.
(4) Any person who contravenes subsection (1) or subsection (2) or subsection (3) of this section commits an offence and is liable on summary conviction to a ﬁne not exceeding $10,000 in the case of an individual, or $30,000 in the case of a body corporate.

Proceedings for an offence against subsection (4) may be commenced within 6 months after the matter giving rise to the contravention was discovered or ought reasonably to have been discovered.
Section 103 was substituted, as from 1 July 1990, by section 37 Commerce Amendment Act 1990 (1990 No 41).

(5) Section 103(1)(a): amended, on 14 October 2008, by section 23 of the Com­ merce Amendment Act 2008 (2008 No 70).

Subsection (1)(a) was amended, as from 26 May 2001, by section 27(3) Com­ merce Amendment Act 2001 (2001 No 32) by inserting, after the words “notice under”, the expression “section 70E or”.

See section 26 of that Act as to pro­ ceedings barred or commenced before 26 May 2001.
Subsection (5) was inserted, as from 26 May 2001, by section 25 Commerce Amendment Act 2001 (2001 No 32).

See section 26 of that Act as to proceed­ ings barred or commenced before 26 May 2001.
104 Determinations of Commission (1) Any determination, clearance, authorisation, or decision given by the Commission under or for the purposes of this Act shall be sufﬁciently given if it is in writing under the seal of the Commission or is signed by one or more members of the Com­ mission or by an employee of the Commission authorised for the purpose.
(2) A copy of a determination, clearance, authorisation or decision of the Commission, certiﬁed to be a true copy by an employee of the Commission authorised in that behalf to certify copies of determinations, clearances, authorisations or decisions of the Commission, shall be received in all courts as evidence of the determination, clearance, authorisation or decision.
(3) A document purporting to be a copy of a determination, clear­ ance, authorisation or decision of the Commission and to be certiﬁed to be a true copy in accordance with subsection (2) of 210 Reprinted as at 1 April 2009 Commerce Act 1986 Part 7 s 106 this section shall, unless the contrary is established, be deemed to be such a copy and to be so certiﬁed.
Compare: 1975 No 113 s 120A; 1976 No 67 s 37(1) Subsections (1) and (2) were amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the words “em­ ployee of the Commission” for the words “ofﬁcer of the Commission”.

105 Restriction on delegation (1) (2) (3) The Commission may not delegate its powers to grant, revoke, or vary an authorisation under this Act.
[Repealed] [Repealed] Subsection (1) was amended, as from 1 July 1990, by section 38 Commerce Amendment Act 1990 (1990 No 41), by omitting the words “grant a clearance or”.

Subsection (1) was amended, as from 2 September 1996, by section 11 Com­ merce Amendment Act 1996 (1996 No 113) by inserting, after the word “Act”, the words “or under the Fair Trading Act 1986”.

Section 105 was substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Section 105(1): amended, on 14 October 2008, by section 24(1) of the Com­ merce Amendment Act 2008 (2008 No 70).

Section 105(2): repealed, on 14 October 2008, by section 24(2) of the Com­ merce Amendment Act 2008 (2008 No 70).

Section 105(3): repealed, on 14 October 2008, by section 24(2) of the Com­ merce Amendment Act 2008 (2008 No 70).
106 Proceedings privileged (1) No proceedings, civil or criminal, shall lie against the Com­ mission for anything it may do or fail to do in the course of the exercise or intended exercise of its functions, unless it is shown that the Commission acted without reasonable care or in bad faith.
(2) No proceedings, civil or criminal, lie against any member of the Commission, or any ofﬁcer or employee of the Commis­ sion, or any member of a committee of the Commission, for anything that person may do or say or fail to do or say in the course of the operations of the Commission, unless it is shown that the person acted in bad faith.
(3) Nothing in subsections (1) and (2) of this section applies in respect of proceedings for— 211 Part 7 s 106 Commerce Act 1986 Reprinted as at 1 April 2009 (a) (b) (c) An offence against section 78 or section 78A or section 105 or section 105A of the Crimes Act 1961; or The offence of conspiring to commit an offence against section 78 or section 78A or section 105 or section 105A of the Crimes Act 1961; or The offence of attempting to commit an offence against section 78 or section 78A or section 105 or section 105A of the Crimes Act 1961.
(3A) Section 59(3) of the Crown Entities Act 2004 (which provides that a statutory entity may bring an action against a member for breach of an individual duty) does not apply, unless it is shown by the Commission that the person acted in bad faith.

(3B) Sections 122 to 126 of the Crown Entities Act 2004 apply as if the conduct for which a person may be indemniﬁed or insured under those sections were conduct that is covered by the pro­ tection from liability in this section.
(3C) This section contains an exception to section 121 of the Crown Entities Act 2004.

(4) A person shall not be excused from complying with any re­ quirement to furnish information, produce documents, or give evidence under this Act, or, on appearing before the Commis­ sion, from answering any question or producing any docu­ ment, on the ground that to do so might tend to incriminate that person.
(5) A statement made by a person in answer to a question put by or before the Commission shall not in criminal proceedings or in proceedings for pecuniary penalties of this Act, be admissible against that person.

(a) (6) Nothing in subsection (5) of this section applies in respect of— Proceedings on a charge of perjury against the maker of the statement; or Proceedings on a charge of an offence against section 103 of this Act.
(b) (7) No court or other person shall be entitled to require any mem­ ber of the Commission, or any employee of the Commission or any other person present at any meeting of the Commission, to divulge or communicate any information furnished or ob­ 212 Reprinted as at 1 April 2009 Commerce Act 1986 Part 7 s 106 tained, documents produced, obtained or tendered, or evidence given, in connection with the operations of the Commission.
(8) Nothing in subsection (7) of this section applies in respect of— Any proceedings referred to in subsection (3) or subsec­ tion (6) of this section; or (a) (b) Any proceedings to which the Commission is a party.
(9) Anything said, or any information furnished, or any document produced or tendered, or any evidence given by any person to the Commission, shall be privileged in the same manner as if that statement, information, document, or evidence were made, furnished, produced, or given in proceedings in a Court.
(10) For the purposes of clause 3 of Part 2 of Schedule 1 to the Defamation Act 1992, any statement, document, determin­ ation, clearance, authorisation, or decision made by the Com­ mission in the exercise or intended exercise of any of its func­ tions or powers shall be deemed to be an ofﬁcial report made by a person holding an inquiry under the authority of the Par­ liament of New Zealand.
Compare: 1975 No 113 s 17(1), (3), (4), s 130B; 1976 No 67 ss 9, 23(3); 1983 No 144 s 45 Subsection (2) was substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

Subsections (3A) to (3C) were inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

Subsections (4) and (5) were substituted, as from 1 July 1990, by section 39 Commerce Amendment Act 1990 (1990 No 41).
Section 106(4): amended, on 14 October 2008, by section 25(1) of the Com­ merce Amendment Act 2008 (2008 No 70).

Section 106(5): amended, on 14 October 2008, by section 25(2) of the Com­ merce Amendment Act 2008 (2008 No 70).

Section 106(5): amended, on 14 October 2008, by section 25(3) of the Com­ merce Amendment Act 2008 (2008 No 70).

Section 106(6)(b): amended, on 14 October 2008, by section 25(4) of the Com­ merce Amendment Act 2008 (2008 No 70).
Subsection (7) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the words “employee of the Commission” for the words “ofﬁcer of the Commission”.

Subsection (10) was substituted, as from 1 February 1993, by section 56 Defamation Act 1992 (1992 No 105).
213 Part 7 s 106A Commerce Act 1986 Reprinted as at 1 April 2009 106A Judicial notice For the purposes of this Act, judicial notice shall be taken in all courts and for all purposes of— (a) (b) The common seal of the Commission: The signature of any person holding, or who has held, ofﬁce as the chairperson, deputy chairperson, or a mem­ ber of the Commission on a document that appears to be a document made on behalf of the Commission: The ofﬁcial seal of the Australian Competition and Con­ sumer Commission: The ofﬁcial signature of any person holding, or who has held, ofﬁce as the chairperson, deputy chairperson, or a member, of the Australian Competition and Consumer Commission on a document that appears to be a docu­ ment made on behalf of that Commission.
(c) (d) Section 106A was inserted, as from 1 July 1990, by section 40 Commerce Amendment Act 1990 (1990 No 41).

Paragraph (b) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the word “chairperson” for the word “Chairman”.

Paragraph (b) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the words “deputy chairper­ son” for the words “Deputy Chairman”.
Paragraphs (c) and (d) were amended, as from 2 September 1996, by section 12 Commerce Amendment Act 1996 (1996 No 113) by substituting the words “Australian Competition and Consumer Commission” for the words “Aus­ tralian Trade Practices Commission”.

Paragraph (d) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the word “chairperson” for the word “Chairman”.
Paragraph (d) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the words “deputy chairper­ son” for the words “Deputy Chairman”.

107 Annual report [Repealed] Subsection (1) was amended, as from 1 July 1990, by section 41 Commerce Amendment Act 1990 (1990 No 41) by substituting the words “30th day of June” for the words “31st day of March”.
Subsection (2) was substituted, as from 21 December 1992, by section 42 Public Finance Amendment Act 1992 (1992 No 142).

Section 107 was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
214 Reprinted as at 1 April 2009 108 Regulations Commerce Act 1986 Part 7 s 109 (b) The Governor­General may from time to time, by Order in Council, make regulations for all or any of the following pur­ poses: (a) Prescribing the procedure to be followed under this Act in respect of applications and notices to, and proceed­ ings of, the Commission: Prescribing forms of applications, notices, and other documents required for the purposes of this Act, and requiring the use of such forms: (c) Prescribing fees to be paid for the purposes of this Act: (ca) Authorising the Commission in its discretion, or on such grounds as may be prescribed, to refund a part of the prescribed fee paid by a person who gives a notice under section 67(1) of this Act in any case where the Commis­ sion gives a clearance under that section: authorising the Commission to refund a part of a pre­ scribed fee paid by a person in any case where a written undertaking is obtained or accepted from that person: Providing for such other matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for its due administration.
(cb) (d) Compare: 1975 No 113 s 132 Paragraphs (ca) and (cb) were inserted, as from 1 July 1990, by section 42 Com­ merce Amendment Act 1990 (1990 No 41).

Section 108(cb): substituted, on 14 October 2008, by section 26 of the Com­ merce Amendment Act 2008 (2008 No 70).

Paragraph (cb) was amended, as from 26 May 2001, by section 27(4) Com­ merce Amendment Act 2001 (2001 No 32) by substituting the expression “sec­ tion 70B” for the expression “section 70(1)”.
See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

109 Commission may prescribe forms For the purposes of this Act the Commission may from time to time prescribe forms of applications, notices, and other docu­ ments required for the purposes of this Act.
215 Part 7 s 110 Commerce Act 1986 Reprinted as at 1 April 2009 110 Repeals, revocations, savings, and consequential (1) (2) (3) amendments The enactments speciﬁed in Schedule 2 to this Act are hereby amended in the manner indicated in that Schedule.

The enactments speciﬁed in Schedule 3 to this Act are hereby repealed.

The regulations and orders speciﬁed in Schedule 4 to this Act are hereby revoked.
(4) Without limiting any provision of this Act, it is hereby ex­ pressly declared that every order, approval, authorisation, notice, decision, consent, or any other act of authority that orginated under or was deemed to have originated under any enactment, regulations, or order repealed or revoked by this section (not being a consent granted in respect of a merger or takeover proposal under the Commerce Act 1975) and subsisting or in force at the commencement of this Act, shall cease to have effect on that commencement.
The repeal of the enactments, and the revocation of the regu­ lations and orders, by this section shall not affect the liability of any person for any offence that was committed before the commencement of this Act, and any proceedings for any such offence may be taken as if this Act had not been passed.
(6) Unless the context otherwise requires, in any other enactment a reference to the Examiner of Trade Practices and Prices ap­ pointed under section 10 of the Trade Practices Act 1958 shall be read as a reference to the Secretary of Trade and Industry.
(5) 111 Transitional provisions in respect of certain contracts, arrangements, or understandings (1) Nothing in sections 27 and 29 of this Act and sections 80 to 82 of this Act shall have any application before the 1st day of March 1987 to the giving effect to a provision of a contract entered into on or before the 11th day of June 1985.
(2) Nothing in section 28 of this Act and sections 80 to 82 of this Act shall have any application before the 1st day of March 1987 to the carrying out or enforcing of the terms of a covenant given before the 11th day of June 1985.
(3) 216 Reprinted as at 1 April 2009 Commerce Act 1986 Part 7 s 113 (4) (5) Nothing in sections 27 and 29 of this Act and sections 80 to 82 of this Act shall have any application before the 1st day of March 1987 to the giving effect to a provision of a contract, arrangement, or understanding which immediately before the commencement of this Act— (a) Constituted a trade practice in respect of which an ap­ proval granted by the Commerce Commission under section 29 of the Commerce Act 1975 was in force (be­ ing a trade practice to which section 27(1) of that Act applied); or Constituted a trade practice deemed to have been ap­ proved, or deemed to have been approved subject to conditions, under section 29 of the Commerce Act 1975 pursuant to subsection (10) of that section (being a trade practice to which section 18A of the Trade Practices Act 1958 applied); or Constituted a collective pricing practice to which sec­ tion 30 of the Commerce Act 1975 applied.
(6) Nothing in this section limits or affects the application of the provisions of Part 5 of this Act and the provisions of Part 6 of this Act (except sections 80 to 82 of this Act).

Subsections (3) and (4) were repealed, as from 1 March 1987, by Civil Aviation Amendment Act 1987 (1987 No 12).
(b) (c) 112 Transitional provisions in respect of goods and services subject to price control under Commerce Act 1975 [Repealed] Sections 112 to 114 were repealed, as from 1 July 1990, by section 43(1) Com­ merce Amendment Act 1990 (1990 No 41).

See section 43(2) of that Act.


113 Transitional provisions in respect of goods and services subject to price restraint under regulations made under Commerce Act 1975 [Repealed] Sections 112 to 114 were repealed, as from 1 July 1990, by section 43(1) Com­ merce Amendment Act 1990 (1990 No 41).

See section 43(2) of that Act.


217 Part 7 s 114 Commerce Act 1986 Reprinted as at 1 April 2009 114 Transitional provisions in respect of milk pricing [Repealed] Sections 112 to 114 were repealed, as from 1 July 1990, by section 43(1) Com­ merce Amendment Act 1990 (1990 No 41).

See section 43(2) of that Act.


115 Savings in respect of certain provisions of Commerce Act 1975 [Repealed] Section 115 was repealed, as from 1 May 1987, by section 49(2) Fair Trading Act 1986 (1986 No 121), and by 43(1) Commerce Amendment Act 1990 (1990 No 41).

See section 43(2) Commerce Amendment Act 1990.

116 Winding up of Commerce Commission established under Commerce Act 1975 [Repealed] Section 116: repealed, on 14 October 2008, by section 27 of the Commerce Amendment Act 2008 (2008 No 70).
117 Members of Commerce Commission established under Commerce Act 1975 deemed to be members of Commission [Repealed] Section 117: repealed, on 14 October 2008, by section 27 of the Commerce Amendment Act 2008 (2008 No 70).

118 Lay members of High Court appointed pursuant to Commerce Act 1975 deemed to be lay members of High Court appointed under this Act [Repealed] Section 118: repealed, on 14 October 2008, by section 27 of the Commerce Amendment Act 2008 (2008 No 70).
218 Reprinted as at 1 April 2009 Commerce Act 1986 Schedule 2 Schedule 1 Classes of merger or takeover proposals requiring prior clearance or authorisation by the Commission [Repealed] Section 50 Schedule 1 was repealed, as from 1 January 1991, by section 44 Commerce Amendment Act 1990 (1990 No 41).

Schedule 2 Enactments amended Section 110(1) Title of Enactment Amendment 1976, No 9—The Real Estate Agents Act 1976 1977, No 33—The Ministry of Energy Act 1977 By repealing section 70(1)(n).
By repealing section 12 (as amended by sec­ tions 7(2) and 9(4) of the Commerce Amend­ ment Act 1983), and substituting the follow­ ing section: “12 (1) The Minister shall exercise and perform, in relation to the prices of goods and services of the classes speciﬁed in subsection (2) of this section, all the powers and duties conferred on the Min­ ister of Trade and Industry under sections 53 and 54 of the Com­ merce Act 1986.
“(2) This section applies to goods of the following classes: “(a) Coal, coal products, elec­ tricity, gas, geothermal energy, petroleum, pet­ 219 Schedule 2 Commerce Act 1986 Reprinted as at 1 April 2009 Title of Enactment Amendment roleum products, and pet­ roleum chemicals: “(b) Any other goods being kinds, forms, or sources of energy, or products from sources of energy, the Governor­Gen­ that eral may from time to time, by Order in Coun­ cil, declare to be goods to which this section ap­ plies: “(c) Any services relating concerning to matters energy that the Gov­ ernor­General may from time to time, by Order in Council, declare to be services to which this sec­ tion applies.
By repealing section 7(2)(i).

By repealing section 29.

1981, No 43—The Sharebrokers Amendment Act 1981 (RS Vol 11, p 344) 1983, No 36—The Air Services Licensing Act 1983 Social Security Act 1964: omitted, as from 1 July 1993, by section 24(2) Health Reforms (Transitional Provisions) Act 1993 (1993 No 23).

Milk Act 1967: omitted, as from 1 April 1988, by section 26(1) Milk Act 1988 (1988 No 13).
220 Reprinted as at 1 April 2009 Commerce Act 1986 Schedule 4 Transport Act 1962: omitted, as from 1 November 1989, by section 69(2)(g) Transport Services Licensing Act 1989 (1989 No 74).

Ofﬁcial Information Act 1982: omitted, pursuant to section 23(2)(d) Ofﬁcial Informa­ tion Amendment Act 1987 (1987 No 8).

Trustee Banks Act 1983: omitted, as from 23 September 1988, by section 40(1) Trustee Banks Restructuring Act 1988 (1988 No 90).
• • • Schedule 3 Enactments repealed Section 110(2) 1975, No 113—The Commerce Act 1975 (RS Vol 7, p 1).

• • • • 1976, No 67—The Commerce Amendment Act 1976 (RS Vol 7, p 148).

1979, No 42—The Commerce Amendment Act 1979 (RS Vol 7, p 155).

1979, No 140—The Commerce Amendment Act (No 2) 1979 (RS Vol 7, p 155).

1980, No 60—The Milk Amendment Act 1980; section 6(1).

1980, No 105—The Commerce Amendment Act 1980 (RS Vol 7, p 159).

1983, No 144—The Commerce Amendment Act 1983.


• 1985, No 7—The Commerce Amendment Act 1985.

• • 1985, No 67—The Commerce Amendment Act (No 2) 1985.

Schedule 3 was amended, as from 3 July 1990, by section 2(4)(k) Ministry of Agriculture and Fisheries Act 1990 (1990 No 53) by omitting so much as relates to the Ministry of Agriculture and Fisheries Amendment Act 1976.
Schedule 4 Orders and notices revoked Section 110(3) Title Statutory Regulation Commerce Act Commencement Order 1975 1975/247 Commerce Regulations 1984 1984/68 221 Schedule 4 Commerce Act 1986 Reprinted as at 1 April 2009 Statutory Regulation 1981/37 1981/156 1981/166 1981/173 1981/335 1981/348 1982/42 1982/121 1983/122 1984/29 1984/327 1985/56 1985/64 Title Positive List of Controlled Goods and Services 1981 Positive List of Controlled Goods and Services 1981, Amendment No 1 Positive List of Controlled Goods and Services 1981, Amendment No 2 Positive List of Controlled Goods and Services 1981, Amendment No 3 Natural Gas (Price Restraint) Regulations 1981 Positive List of Controlled Goods and Services 1981, Amendment No 4 Positive List of Controlled Goods and Services 1981, Amendment No 5 Positive List of Controlled Goods and Services 1981, Amendment No 6 Positive List of Controlled Goods and Services 1981, Amendment No 7 Positive List of Controlled Goods and Services 1981, Amendment No 8 Positive List of Controlled Goods and Services 1981, Amendment No 9 Positive List of Controlled Goods and Services 1981, Amendment No 10 Positive List of Controlled Goods and Services 1981, Amendment No 11 222 Commerce Act 1986 Schedule 5 Reprinted as at 1 April 2009 Title Positive List of Controlled Goods and Services 1981, Amendment No 12 Positive List of Controlled Goods and Services 1981, Amendment No 13 Positive List of Controlled Goods and Services 1981, Amendment No 14 Positive List of Controlled Goods and Services 1981, Amendment No 15 Positive List of Controlled Goods and Services 1981, Amendment No 16 Positive List of Controlled Goods and Services 1981, Amendment No 17 Statutory Regulation 1985/165 1985/191 1985/218 1985/303 1986/30 1986/56 Schedule 5 Material incorporated by reference s 53ZF Schedule 5: added, on 14 October 2008, by section 28 of the Commerce Amend­ ment Act 2008 (2008 No 70).
1 Deﬁnitions In this schedule, unless the context otherwise requires,— material means written material that is set out in a document other than a Part 4 determination Part 4 determination means either of the following: a determination made under section 52P: (a) an input methodology published under section 52W.
(b) 2 (1) Material incorporated by reference into Part 4 determinations The Commission may incorporate by reference any material into a Part 4 determination if— 223 Schedule 5 Commerce Act 1986 Reprinted as at 1 April 2009 (a) (b) the material deals with technical matters; and it is impractical to include it in, or publish it as part of, the determination.
(2) Material may be incorporated by reference into a Part 4 deter­ mination— (a) (b) with any modiﬁcations, additions, or variations speci­ in whole or in part; and ﬁed in the Part 4 determination.

(3) Material incorporated by reference— (a) (b) is the material as it exists at the time the Part 4 deter­ mination is published; and has legal effect as part of the Part 4 determination for all purposes, except as provided in clauses 8 and 9.
Proof of material incorporated by reference 3 (1) A copy of any material incorporated by reference in a Part 4 determination must be— (a) certiﬁed by the chairperson as a correct copy of the ma­ terial; and retained by the chairperson.

(b) The production in proceedings of a certiﬁed copy of the ma­ terial is, in the absence of evidence to the contrary, sufﬁcient evidence of the incorporation of the material into the Part 4 de­ termination.
Access to material incorporated by reference The Commission— (a) must make copies of all material incorporated by refer­ ence in a Part 4 determination available for inspection during normal working hours at the head ofﬁce of the Commission; and (b) must make copies of the material available for purchase at a reasonable price from the head ofﬁce of the Com­ mission; and (c) may make copies of the material available in any other way that the chairperson considers appropriate in the circumstances (such as on an Internet site); and (d) must give notice in the Gazette of how the material is available for inspection and purchase.
(2) 4 (1) 224 Reprinted as at 1 April 2009 Commerce Act 1986 Schedule 5 (2) Subclause (1) applies to material when it is ﬁrst incorporated into a Part 4 determination, and to any subsequent amendment or replacement of the material that is incorporated into the de­ termination.

(3) A failure to comply with this clause does not invalidate a Part 4 determination.
5 6 Effect of amendments to, or replacements of, material incorporated by reference An amendment to, or replacement of, material incorporated by reference in a Part 4 determination has legal effect as part of the determination only if— (a) the amendment or replacement material is made by the person or organisation that made the original material; and the amendment or replacement material is of the same general character as the original material; and either— (i) a subsequent Part 4 determination states that the particular amendment or replacement material has legal effect as part of the determination; or the chairperson, by notice in the Gazette, adopts the amendment or replacement material as hav­ ing legal effect as part of the determination.
(ii) (b) (c) Effect of expiry of material incorporated by reference Material incorporated by reference in a Part 4 determination that expires, is revoked, or ceases to have effect, ceases to have legal effect as part of the Part 4 determination only if— (a) a subsequent Part 4 determination states that the mater­ ial ceases to have that legal effect; or the chairperson, by notice in the Gazette, states that the material ceases to have that legal effect.
(b) 7 (1) Consultation before material incorporated by reference This clause applies if— (a) the Commission proposes to incorporate material by reference into any Part 4 determination; or 225 Schedule 5 Commerce Act 1986 Reprinted as at 1 April 2009 (2) (b) (c) the Commission proposes to make a Part 4 determin­ ation adopting amended or replacement material; or the chairperson proposes to publish a notice in the Gazette adopting amended or replacement material.
If any of the things referred to in subclause (1) are proposed, the Commission— (a) must make copies of the material (which in this sub­ clause includes any amended or replacement material) proposed to be incorporated by reference available for inspection during normal working hours at the head of­ ﬁce of the Commission; and (b) must make copies of the material available for purchase at a reasonable price from the head ofﬁce of the Com­ mission; and (c) may make copies of the material available in any other way that the chairperson considers appropriate in the circumstances (such as on an Internet site); and (d) must give notice in the Gazette of how copies of the ma­ terial may be inspected and purchased, and how people may make comments on the proposal; and (e) must allow a reasonable opportunity for people to com­ (f) ment on the proposal; and must consider any comments made within the time al­ lowed.
(3) A failure to comply with this clause does not invalidate a Part 4 determination.

Acts and Regulations Publication Act 1989 not applicable The Acts and Regulations Publication Act 1989 does not apply to material incorporated by reference in a Part 4 determination, or to any amendment to, or replacement of, the material.
Regulations (Disallowance) Act 1989 not applicable The Regulations (Disallowance) Act 1989 does not apply to material incorporated by reference in a Part 4 determination, or to any amendment to, or replacement of, the material.

8 9 226 Reprinted as at 1 April 2009 Commerce Act 1986 Schedule 6 Schedule 6 Exemptions from Part 4 in respect of speciﬁc pipelines s 55A(2)(c), (4) Schedule 6: added, on 14 October 2008, by section 28 of the Commerce Amend­ ment Act 2008 (2008 No 70).
Pipeline owner Todd Taranaki Limited Swift Energy New Zealand Limited Methanex New Zealand Limited • Pipeline McKee Production Station—Tikorangi gas pipelines Waihapa—New Plymouth gas pipeline • • • Road—Waitara Bertrand Valley Plant gas pipeline (via Faull Road Mixing sta­ tion) Road Tikorangi—Faull Mixing Station gas pipeline Faull Road Mixing Sta­ tion—Motunui Plant main process gas pipeline Faull Road Mixing Sta­ tion—Waitara Valley Plant minor gas pipeline The 032 pipeline running from the T­junction on the Maui Pipeline at Ngatimaru Road to the Po­ hokura Production Station and the Methanex Motunui Methanol Plant Kapuni—Faull Road Mixing Station low temperature separator gas pipeline All gas pipelines 227 Energy Infrastructure Limited and Petroleum Infrastructure Limited Vector Limited Nova Gas Limited Commerce Act 1986 Reprinted as at 1 April 2009 Commerce Amendment Act 2008 Public Act Date of assent Commencement 2008 No 70 see section 2 Title This Act is the Commerce Amendment Act 2008.
(b) Commencement The following come into force on 1 April 2009: (a) sections 5 and 30 (which repeal Part 4A of the principal Act relating to electricity lines businesses); and subpart 9 of Part 4 of the principal Act (which relates to electricity lines businesses, as substituted by section 4 of this Act), except sections 54D(3) and 54N.

The rest of this Act comes into force on the 28th day after the date on which it receives the Royal assent.
1 2 (1) (2) Part 1 Amendments to Commerce Act 1986 Replacement of Parts 4 and 4A Part 4A repealed Amendment incorporated in the principal Act 5 (1) (2) However, Part 4A may continue to be applied under Part 4 in connection with the breach of thresholds set under Part 4A before its repeal, including when those thresholds apply (as default price­quality paths) after its repeal.
Amendments to Part 5 Commission to prepare draft determination in relation to restrictive trade practices Amendment incorporated in the principal Act Section 62(5) and (6) of the principal Act (as amended by this section) apply in respect of every application for an authorisa­ tion under section 58 of the principal Act that is made after the commencement of this section.
6 (1) (2) 228 Reprinted as at 1 April 2009 Commerce Act 1986 7 (1) (2) (3) 13 (1) (2) (3) 14 (1) (2) New sections 69AB and 69AC inserted Amendment incorporated in the principal Act Section 69AB of the principal Act (as inserted by this section) applies only to undertakings under section 69A of the prin­ cipal Act that are accepted in relation to clearances given or authorisations granted on notices under section 66 or 67 of the principal Act that are registered after the commencement of this section.
Section 69AC of the principal Act (as inserted by this section) applies to— (a) every undertaking accepted under section 69A of the principal Act before the commencement of this section, if the period for giving effect to the undertaking has not expired at the time of that commencement; and every undertaking accepted under section 69A of the principal Act after the commencement of this section.
(b) Amendments to Part 6 Injunctions may be granted by Court for contravention of Part 3 Amendment incorporated in the principal Act Amendment incorporated in the principal Act Section 84(2) of the principal Act (as inserted by this section) applies only to undertakings under section 69A of the prin­ cipal Act that are accepted in relation to clearances given or authorisations granted on notices under section 66 or 67 of the principal Act that are registered after the commencement of this section.
New sections 85A to 85C inserted Amendment incorporated in the principal Act Sections 85A to 85C of the principal Act (as inserted by this section) apply only to undertakings under section 69A of the principal Act that are accepted in relation to clearances given or authorisations granted on notices under section 66 or 67 of the principal Act that are registered after the commencement of this section.
229 Notes Commerce Act 1986 Reprinted as at 1 April 2009 Contents 1 2 3 General About this eprint List of amendments incorporated in this eprint (most recent ﬁrst) General This is an eprint of the Commerce Act 1986.

It incorporates all the amendments to the Act as at 1 April 2009.

The list of amendments at the end of these notes speciﬁes all the amendments incorporated into this eprint since 3 September 2007.
Relevant provisions of any amending enactments that contain transitional, savings, or application provisions are also included, after the Principal enactment, in chronological order.

About this eprint This eprint has not been ofﬁcialised.

For more information about ofﬁcialisation, please see “Making online legislation ofﬁcial” under “Status of legislation on this site” in the About section of this website.
List of amendments incorporated in this eprint (most recent ﬁrst) Electricity Industry Reform Amendment Act 2008 (2008 No 71): sections 28 and 29 Commerce Amendment Act 2008 (2008 No 70) Notes 1 2 3 230